Guidance 2010 ADA Standards

8/12/2019 Guidance 2010 ADA Standards

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Department of Justice

September 15, 2010

Guidance on the2010 ADA Standards

for Accessible Design





Contents

Introduction........…………………....….………......1

State and Local Government Facilities:

Guidance on the Revisions to 28 CFR 35.151....3

Public Accommodations and Commercial

Facilities: Guidance on the Revisions

to 28 CFR part 36, subpart D.............…….……..39

Appendix B to part 36: Analysis and

Commentary on the 2010 ADA Standards

for Accessible Design…......................................69

1

2

3

4

ii



iii



1

The Department of Justice published its revised regulations forTitles II and III of the Americans with Disabilities Act of 1990 “ADA”

in the Federal Register on September 15, 2010, which includethe 2010 Standards for Accessible Design “2010 Standards” or“Standards”. In the revised regulations, the Department includeddetailed guidance with a section-by-section analysis of therevisions.

The following includes guidance from the revised regulationsrelated to 28 CFR 35.151; 28 CFR part 36, subpart D; andthe 2004 ADAAG. It addresses changes to the Standards,

the reasoning behind those changes, and responses to publiccomments received on these topics

For More Information

For information about the ADA, including the revised 2010 ADAregulations, please visit the Department’s website www.ADA.gov; or, for answers to specic questions, call the toll-free ADA

Information Line at 800-514-0301 (voice) or 800-514-0383 (TTY).

Introduction1



2



2 State and LocalGovernment Facilities

3



- Guidance on 2010 Standards: Title II Department of Justice4



State and Local Government

Facilities: Guidance on the

Revisions to 28 CFR Section35.151

Section 35.151(a), which provided that

those facilities that are constructed or altered

by, on behalf of, or for the use of a public

entity shall be designed, constructed, or

altered to be readily accessible to and usable

by individuals with disabilities, is unchanged

in the final rule, but has been redesignatedas Sec. 35.151(a)(1). The Department has

added a new section, designated as Sec.

35.151(a)(2), to provide that full compliance

with the requirements of this section is not

required where an entity can demonstrate

that it is structurally impracticable to meet

the requirements. Full compliance will be

considered structurally impracticable only in

those rare circumstances when the unique

characteristics of terrain prevent the incorpo-

ration of accessibility features. This excep-

tion was contained in the title III regulation

and in the 1991 Standards (applicable to

both public accommodations and facilities

used by public entities), so it has applied

to any covered facility that was constructed

under the 1991 Standards since the effective

date of the ADA. The Department added it

to the text of Sec. 35.151 to maintain con-sistency between the design requirements

that apply under title II and those that apply

under title III. The Department received no

significant comments about this section.

Section 35.151(b) Alterations

The 1991 title II regulation does not con-

tain any specific regulatory language com-

parable to the 1991 title III regulation relating

to alterations and path of travel for cov-

ered entities, although the 1991 Standards

describe standards for path of travel during

alterations to a primary function. See 28 CFR

part 36, app A., section 4.1.6(a) (2009).

The path of travel requirements con-

tained in the title III regulation are basedon section 303(a)(2) of the ADA, 42 U.S.C.

12183(a)(2), which provides that when an

entity undertakes an alteration to a place of

public accommodation or commercial facil-

ity that affects or could affect the usabil-

ity of or access to an area that contains

a primary function, the entity shall ensure

that, to the maximum extent feasible, the

path of travel to the altered area--and the

restrooms, telephones, and drinking foun-

tains serving it--is readily accessible to

and usable by individuals with disabilities,

including individuals who use wheelchairs.

The NPRM proposed amending

Sec. 35.151 to add both the path of travel

requirements and the exemption relating

to barrier removal (as modified to apply to

the program accessibility standard in titleII) that are contained in the title III regula-

tion to the title II regulation. Proposed

Sec. 35.151(b)(4) contained the require-

ments for path of travel. Proposed

Section 35.151 -- Title II Regulation

Guidance on 2010 Standards: Title II - 5Department of Justice



Sec. 35.151(b)(2) stated that the path of

travel requirements of Sec. 35.151(b)(4) shall

not apply to measures taken solely to complywith program accessibility requirements.

Where the specific requirements for path

of travel apply under title III, they are lim-

ited to the extent that the cost and scope

of alterations to the path of travel are dis-

proportionate to the cost of the overall

alteration, as determined under criteria

established by the Attorney General.

The Access Board included the path of

travel requirement for alterations to facilities

covered by the standards (other than those

subject to the residential facilities standards)

in section 202.4 of 2004 ADAAG. Section

35.151(b)(4)(iii) of the final rule establishes

the criteria for determining when the cost of

alterations to the path of travel is “dispropor-

tionate’’ to the cost of the overall alteration.

The NPRM also provided that areas

such as supply storage rooms, employee

lounges and locker rooms, janitorial closets,

entrances, and corridors are not areas con-

taining a primary function. Nor are restroom

areas considered to contain a primary func-

tion unless the provision of restrooms is a

primary purpose of the facility, such as at a

highway rest stop. In that situation, a rest-room would be considered to be an “area

containing a primary function’’ of the facility.

The Department is not changing the

requirements for program accessibility. As

provided in Sec. 35.151(b)(2) of the regula-tion, the path of travel requirements of Sec.

35.151(b)(4) only apply to alterations under-

taken solely for purposes other than to meet

the program accessibility requirements.

The exemption for the specific path of travel

requirement was included in the regula-

tion to ensure that the specific requirements

and disproportionality exceptions for path of

travel are not applied when areas are being

altered to meet the title II program accessibil-ity requirements in Sec. 35.150. In contrast,

when areas are being altered to meet pro-

gram accessibility requirements, they must

comply with all of the applicable require-

ments referenced in section 202 of the 2010

Standards. A covered title II entity must pro-

vide accessibility to meet the requirements

of Sec. 35.150 unless doing so is an undue

financial and administrative burden in accor-dance with Sec. 35.150(a)(3). A covered title

II entity may not use the disproportionality

exception contained in the path of travel pro-

visions as a defense to providing an acces-

sible route as part of its obligation to provide

program accessibility. The undue financial

and administrative burden standard does

not contain any bright line financial tests.

The Department’s proposedSec. 35.151(b)(4) adopted the language

now contained in Sec. 36.403 of the title

III regulation, including the disproportion-

ality limitation (i.e., alterations made to

6 - Guidance on 2010 Standards: Title II





provide an accessible path of travel to the

altered area would be deemed dispropor-

tionate to the overall alteration when thecost exceeds 20 percent of the cost of the

alteration to the primary function area).

Proposed Sec. 35.151(b)(2) provided that

the path of travel requirements do not apply

to alterations undertaken solely to comply

with program accessibility requirements.

The Department received a substan-

tial number of comments objecting to the

Department’s adoption of the exemption forthe path of travel requirements when altera-

tions are undertaken solely to meet program

accessibility requirements. These comment-

ers argued that the Department had no statu-

tory basis for providing this exemption nor

does it serve any purpose. In addition, these

commenters argued that the path of travel

exemption has the effect of placing new limi-

tations on the obligations to provide program

access. A number of commenters argued that

doing away with the path of travel require-

ment would render meaningless the concept

of program access. They argued that just as

the requirement to provide an accessible path

of travel to an altered area (regardless of the

reason for the alteration), including making

the restrooms, telephones, and drinking foun-

tains that serve the altered area accessible,

is a necessary requirement in other altera-tions, it is equally necessary for alterations

made to provide program access. Several

commenters expressed concern that a read-

ily accessible path of travel be available to

ensure that persons with disabilities can get

to the physical location in which programs

are held. Otherwise, they will not be able toaccess the public entity’s service, program,

or activity. Such access is a cornerstone of

the protections provided by the ADA. Another

commenter argued that it would be a waste of

money to create an accessible facility without

having a way to get to the primary area. This

commenter also stated that the International

Building Code (IBC) requires the path of trav-

el to a primary function area, up to 20 percent

of the cost of the project. Another commenteropposed the exemption, stating that the trig-

ger of an alteration is frequently the only

time that a facility must update its facilities to

comply with evolving accessibility standards.

In the Department’s view, the comment-

ers objecting to the path of travel exemption

contained in Sec. 35.151(b)(2) did not under-

stand the intention behind the exemption.

The exemption was not intended to eliminate

any existing requirements related to acces-

sibility for alterations undertaken in order

to meet program access obligations under

Sec. 35.149 and Sec. 35.150. Rather, it was

intended to ensure that covered entities did

not apply the path of travel requirements in

lieu of the overarching requirements in this

Subpart that apply when making a facility

accessible in order to comply with programaccessibility. The exemption was also intend-

ed to make it clear that the disproportionality

test contained in the path of travel standards

is not applicable in determining whether





providing program access results in an undue

financial and administration burden within the

meaning of Sec. 35.150(a)(3). The exemp-tion was also provided to maintain consis-

tency with the title III path of travel exemption

for barrier removal, see Sec. 36.304(d), in

keeping with the Department’s regulatory

authority under title II of the ADA. See 42

U.S.C. 12134(b); see also H. R Rep. No.

101B485, pt. 2, at 84 (1990) (“The committee

intends, however, that the forms of discrimi-

nation prohibited by section 202 be identi-

cal to those set out in the applicable provi-sions of titles I and III of this legislation.’’).

For title II entities, the path of travel

requirements are of significance in those

cases where an alteration is being made

solely for reasons other than program acces-

sibility. For example, a public entity might

have six courtrooms in two existing buildings

and might determine that only three of thosecourtrooms and the public use and common

use areas serving those courtrooms in one

building are needed to be made accessible

in order to satisfy its program access obliga-

tions. When the public entity makes those

courtrooms and the public use and common

use areas serving them accessible in order

to meet its program access obligations, it

will have to comply with the 2010 Standards

unless the public entity can demonstrate thatfull compliance would result in undue finan-

cial and administrative burdens as described

in Sec. 35.150(a)(3). If such action would

result in an undue financial or administrative

burden, the public entity would nevertheless

be required to take some other action that

would not result in such an alteration or suchburdens but would ensure that the benefits

and services provided by the public entity are

readily accessible to persons with disabilities.

When the public entity is making modifica-

tions to meet its program access obligation,

it may not rely on the path of travel excep-

tion under Sec. 35.151(b)(4), which limits

the requirement to those alterations where

the cost and scope of the alterations are

not disproportionate to the cost and scopeof the overall alterations. If the public entity

later decides to alter courtrooms in the other

building, for purposes of updating the facility

(and, as previously stated, has met its pro-

gram access obligations) then in that case,

the public entity would have to comply with

the path of travel requirements in the 2010

Standards subject to the disproportionality

exception set forth in Sec. 35.151(b)(4).

The Department has slightly revised pro-

posed Sec. 35.151(b)(2) to make it clearer

that the path of travel requirements only

apply when alterations are undertaken solely

for purposes other than program accessibility.

Section 35.151(b)(4)(ii)(C)

Path of travel--safe harbor

In Sec. 35.151(b)(4)(ii)(C) of the NPRM, the

Department included a provision that stated

that public entities that have brought required

elements of path of travel into compliance






with the 1991 Standards are not required

to retrofit those elements in order to reflect

incremental changes in the 2010 Standardssolely because of an alteration to a primary

function area that is served by that path

of travel. In these circumstances, the pub-

lic entity is entitled to a safe harbor and is

only required to modify elements to comply

with the 2010 Standards if the public entity

is planning an alteration to the element.

A substantial number of commenters

objected to the Department’s imposition ofa safe harbor for alterations to facilities of

public entities that comply with the 1991

Standards. These commenters argued

that if a public entity is already in the pro-

cess of altering its facility, there should be

a legal requirement that individuals with

disabilities be entitled to increased acces-

sibility by using the 2010 Standards for

path of travel work. They also stated thatthey did not believe there was a statu-

tory basis for “grandfathering’’ facilities

that comply with the 1991 Standards.

The ADA is silent on the issue of “grand-

fathering’’ or establishing a safe harbor for

measuring compliance in situations where

the covered entity is not undertaking a

planned alteration to specific building ele-

ments. The ADA delegates to the AttorneyGeneral the responsibility for issuing regula-

tions that define the parameters of covered

entities’ obligations when the statute does

not directly address an issue. This regulation

implements that delegation of authority.

One commenter proposed that a previ-

ous record of barrier removal be one ofthe factors in determining, prospectively,

what renders a facility, when viewed in

its entirety, usable and accessible to

persons with disabilities. Another com-

menter asked the Department to clarify,

at a minimum, that to the extent compli-

ance with the 1991 Standards does not

provide program access, particularly with

regard to areas not specifically addressed

in the 1991 Standards, the safe harborwill not operate to relieve an entity of its

obligations to provide program access.

One commenter supported the proposal

to add a safe harbor for path of travel.

The final rule retains the safe harbor

for required elements of a path of travel to

altered primary function areas for public enti-ties that have already complied with the 1991

Standards with respect to those required

elements. The Department believes that this

safe harbor strikes an appropriate balance

between ensuring that individuals with dis-

abilities are provided access to buildings and

facilities and potential financial burdens on

existing public entities that are undertaking

alterations subject to the 2010 Standards.

This safe harbor is not a blanket exemptionfor facilities. If a public entity undertakes an

alteration to a primary function area, only

the required elements of a path of travel to

that area that already comply with the 1991





Standards are subject to the safe harbor. If

a public entity undertakes an alteration to a

primary function area and the required ele-ments of a path of travel to the altered area

do not comply with the 1991 Standards, then

the public entity must bring those elements

into compliance with the 2010 Standards.

Section 35.151(b)(3)

Alterations to historic facilities

The final rule renumbers the requirements

for alterations to historic facilities enumer-ated in current Sec. 35.151(d)(1) and (2) as

Sec. 35.151(b)(3)(i) and (ii). Currently, the

regulation provides that alterations to his-

toric facilities shall comply to the maximum

extent feasible with section 4.1.7 of UFAS

or section 4.1.7 of the 1991 Standards. See

28 CFR 35.151(d)(1). Section 35.151(b)(3)

(i) of the final rule eliminates the option of

using UFAS for alterations that commence

on or after March 15, 2012. The substan-

tive requirement in current Sec. 35.151(d)

(2)--that alternative methods of access shall

be provided pursuant to the requirements

of Sec. 35.150 if it is not feasible to provide

physical access to an historic property in

a manner that will not threaten or destroy

the historic significance of the building or

facility--is contained in Sec. 35.151(b)(3)(ii).

Section 35.151(c) Accessibility

standards for new construction and

alterations

Section 35.151(c) of the NPRM proposed

to adopt ADA Chapter 1, ADA Chapter 2, and

Chapters 3 through 10 of the Americans with

Disabilities Act and Architectural Barriers

Act Guidelines (2004 ADAAG) into the ADA

Standards for Accessible Design (2010

Standards). As the Department has noted,

the development of these standards repre-

sents the culmination of a lengthy effort bythe Access Board to update its guidelines,

to make the Federal guidelines consistent to

the extent permitted by law, and to harmonize

the Federal requirements with the private

sector model codes that form the basis of

many State and local building code require-

ments. The full text of the 2010 Standards

is available for public review on the ADA

Home Page (http://www.ada.gov) and on the Access Board’s Web site (http://www.access-

board.gov/gs.htm) (last visited June 24,

2010). The Access Board site also includes

an extensive discussion of the develop-

ment of the 2004 ADA/ABA Guidelines,

and a detailed comparison of the 1991

Standards, the 2004 ADA/ABA Guidelines,

and the 2003 International Building Code.

Section 204 of the ADA, 42 U.S.C. 12134,directs the Attorney General to issue regula-

tions to implement title II that are consistent

with the minimum guidelines published by






the Access Board. The Attorney General

(or his designee) is a statutory member of

the Access Board (see 29 U.S.C. 792(a)(1)(B(vii)) and was involved in the develop-

ment of the 2004 ADAAG. Nevertheless,

during the process of drafting the NPRM,

the Department reviewed the 2004 ADAAG

to determine if additional regulatory provi-

sions were necessary. As a result of this

review, the Department decided to propose

new sections, which were contained in

Sec. 35.151(e)(h) of the NPRM, to clarify

how the Department will apply the proposedstandards to social service center estab-

lishments, housing at places of education,

assembly areas, and medical care facilities.

Each of these provisions is discussed below.

Congress anticipated that there would

be a need for close coordination of the ADA

building requirements with State and local

building code requirements. Therefore, the

ADA authorized the Attorney General to

establish an ADA code certification process

under title III of the ADA. That process is

addressed in 28 CFR part 36, subpart F.

Revisions to that process are addressed in

the regulation amending the title III regula-

tion published elsewhere in the Federal

Register today. In addition, the Department

operates an extensive technical assistance

program. The Department anticipates thatonce this rule is final, revised technical

assistance material will be issued to pro-

vide guidance about its implementation.

Section 35.151(c) of the 1991 title II

regulation establishes two standards for

accessible new construction and alteration.Under paragraph (c), design, construction,

or alteration of facilities in conformance with

UFAS or with the 1991 Standards (which,

at the time of the publication of the rule

were also referred to as the Americans with

Disabilities Act Accessibility Guidelines for

Buildings and Facilities (1991 ADAAG)) is

deemed to comply with the requirements

of this section with respect to those facili-

ties (except that if the 1991 Standards arechosen, the elevator exemption does not

apply). The 1991 Standards were based on

the 1991 ADAAG, which was initially devel-

oped by the Access Board as guidelines for

the accessibility of buildings and facilities

that are subject to title III. The Department

adopted the 1991 ADAAG as the standards

for places of public accommodation and

commercial facilities under title III of the

ADA and it was published as Appendix A

to the Department’s regulation implement-

ing title III, 56 FR 35592 (July 26, 1991) as

amended, 58 FR 17522 (April 5, 1993), and

as further amended, 59 FR 2675 (Jan. 18,

1994), codified at 28 CFR part 36 (2009).

Section 35.151(c) of the final rule adopts

the 2010 Standards and establishes the

compliance date and triggering events forthe application of those standards to both

new construction and alterations. Appendix

B of the final title III rule (Analysis and





Commentary on the 2010 ADA Standards for

Accessible Design) (which will be published

today elsewhere in this volume and codifiedas Appendix B to 28 CFR part 36) provides a

description of the major changes in the 2010

Standards (as compared to the 1991 ADAAG)

and a discussion of the public comments that

the Department received on specific sections

of the 2004 ADAAG. A number of comment-

ers asked the Department to revise certain

provisions in the 2004 ADAAG in a manner

that would reduce either the required scop-

ing or specific technical accessibility require-ments. As previously stated, although the

ADA requires the enforceable standards

issued by the Department under title II and

title III to be consistent with the minimum

guidelines published by the Access Board,

it is the sole responsibility of the Attorney

General to promulgate standards and to

interpret and enforce those standards. The

guidelines adopted by the Access Board are“minimum guidelines.’’ 42 U.S.C. 12186(c).

Compliance date. When the ADA was

enacted, the effective dates for various

provisions were delayed in order to provide

time for covered entities to become familiar

with their new obligations. Titles II and III

of the ADA generally became effective on

January 26, 1992, six months after the

regulations were published. See 42 U.S.C.12131 note; 42 U.S.C. 12181 note. New

construction under title II and alterations

under either title II or title III had to comply

with the design standards on that date. See

42 U.S.C. 12183(a)(1). For new construction

under title III, the requirements applied

to facilities designed and constructed forfirst occupancy after January 26, 1993--

18 months after the 1991 Standards were

published by the Department. In the NPRM,

the Department proposed to amend

Sec. 35.151(c)(1) by revising the current

language to limit the application of the 1991

standards to facilities on which construction

commences within six months of the final

rule adopting revised standards. The NPRM

also proposed adding paragraph (c)(2) toSec. 35.151, which states that facilities on

which construction commences on or after

the date six months following the effective

date of the final rule shall comply with the

proposed standards adopted by that rule.

As a result, under the NPRM, for the first

six months after the effective date, public

entities would have the option to use eitherUFAS or the 1991 Standards and be in

compliance with title II. Six months after the

effective date of the rule, the new standards

would take effect. At that time, construction

in accordance with UFAS would no longer

satisfy ADA requirements. The Department

stated that in order to avoid placing the bur-

den of complying with both standards on

public entities, the Department would coor-

dinate a government-wide effort to reviseFederal agencies’ section 504 regulations

to adopt the 2004 ADAAG as the standard

for new construction and alterations.






The purpose of the proposed six-month

delay in requiring compliance with the 2010

Standards was to allow covered entities areasonable grace period to transition between

the existing and the proposed standards. For

that reason, if a title II entity preferred to use

the 2010 Standards as the standard for new

construction or alterations commenced within

the six-month period after the effective date

of the final rule, such entity would be consid-

ered in compliance with title II of the ADA.

The Department received a number ofcomments about the proposed six-month

effective date for the title II regulation that

were similar in content to those received on

this issue for the proposed title III regula-

tion. Several commenters supported the six-

month effective date. One commenter stated

that any revisions to its State building code

becomes effective six months after adop-

tion and that this has worked well. In addi-tion, this commenter stated that since 2004

ADAAG is similar to IBC 2006 and ICC/ANSI

A117.1-2003, the transition should be easy.

By contrast, another commenter advocated

for a minimum 12-month effective date, argu-

ing that a shorter effective date could cause

substantial economic hardships to many cit-

ies and towns because of the lengthy lead

time necessary for construction projects.

This commenter was concerned that a six-month effective date could lead to projects

having to be completely redrawn, rebid, and

rescheduled to ensure compliance with the

new standards. Other commenters advocated

that the effective date be extended to at least

18 months after the publication of the rule.

One of these commenters expressed con-cern that the kinds of bureaucratic organiza-

tions subject to the title II regulations lack

the internal resources to quickly evaluate the

regulatory changes, determine whether they

are currently compliant with the 1991 stan-

dards, and determine what they have to do

to comply with the new standards. The other

commenter argued that 18 months is the

minimum amount of time necessary to ensure

that projects that have already been designedand approved do not have to undergo costly

design revisions at taxpayer expense.

The Department is persuaded by the con-

cerns raised by commenters for both the

title II and III regulations that the six-month

compliance date proposed in the NPRM for

application of the 2010 Standards may be

too short for certain projects that are alreadyin the midst of the design and permitting

process. The Department has determined

that for new construction and alterations,

compliance with the 2010 Standards will

not be required until 18 months from the

date the final rule is published. Until the

time compliance with the 2010 Standards is

required, public entities will have the option

of complying with the 2010 Standards, the

UFAS, or the 1991 Standards. However,public entities that choose to comply with

the 2010 Standards in lieu of the 1991

Standards or UFAS prior to the compliance

date described in this rule must choose





one of the three standards, and may not

rely on some of the requirements contained

in one standard and some of the require-ments contained in the other standards.

Triggering event. In Sec. 35.151(c)(2) of the

NPRM, the Department proposed that the

commencement of construction serve as the

triggering event for applying the proposed

standards to new construction and alterations

under title II. This language is consistent with

the triggering event set forth in

Sec. 35.151(a) of the 1991 title II regula-tion. The Department received only four

comments on this section of the title II

rule. Three commenters supported the

use of “start of construction’’ as the trig-

gering event. One commenter argued that

the Department should use the “last build-

ing permit or start of physical construction,

whichever comes first,’’ stating that “alter-

ing a design after a building permit hasbeen issued can be an undue burden.’’

After considering these comments, the

Department has decided to continue to use

the commencement of physical construc-

tion as the triggering event for application of

the 2010 Standards for entities covered by

title II. The Department has also added

clarifying language at Sec. 35.151(c)

(4) to the regulation to make it clear thatthe date of ceremonial groundbreaking

or the date a structure is razed to make

it possible for construction of a facility to

take place does not qualify as the com-

mencement of physical construction.

Section 234 of the 2010 Standards pro-

vides accessibility guidelines for newly

designed and constructed amusement rides.The amusement ride provisions do not pro-

vide a “triggering event’’ for new construc-

tion or alteration of an amusement ride. An

industry commenter requested that the trig-

gering event of “first use,’’ as noted in the

Advisory note to section 234.1 of the 2004

ADAAG, be included in the final rule. The

Advisory note provides that “[a] custom

designed and constructed ride is new upon

its first use, which is the first time amusementpark patrons take the ride.’’ The Department

declines to treat amusement rides differ-

ently than other types of new construction

and alterations. Under the final rule, they are

subject to Sec. 35.151(c). Thus, newly con-

structed and altered amusement rides shall

comply with the 2010 Standards if the start

of physical construction or the alteration is

on or after 18 months from the publicationdate of this rule. The Department also notes

that section 234.4.2 of the 2010 Standards

only applies where the structural or opera-

tional characteristics of an amusement ride

are altered. It does not apply in cases where

the only change to a ride is the theme.

Noncomplying new construction and

alterations. The element-by-element safe

harbor referenced in Sec. 35.150(b)(2)has no effect on new or altered elements

in existing facilities that were subject to

the 1991 Standards or UFAS on the date

that they were constructed or altered,






but do not comply with the technical and

scoping specifications for those elements

in the 1991 Standards or UFAS. Section35.151(c)(5) of the final rule sets forth the

rules for noncompliant new construction or

alterations in facilities that were subject to

the requirements of this part. Under those

provisions, noncomplying new construction

and alterations constructed or altered

after the effective date of the applicable

ADA requirements and before March 15,

2012 shall, before March 15, 2012, be

made accessible in accordance with eitherthe 1991 Standards, UFAS, or the 2010

Standards. Noncomplying new construction

and alterations constructed or altered after

the effective date of the applicable ADA

requirements and before March 15, 2012,

shall, on or after March 15, 2012 be made

accessible in accordance with the 2010

Standards.

Section 35.151(d) Scope of coverage

In the NPRM, the Department proposed

a new provision, Sec. 35.151(d), to clarify

that the requirements established by

Sec. 35.151, including those contained in

the 2004 ADAAG, prescribe what is neces-

sary to ensure that buildings and facilities,

including fixed or built-in elements in new or

altered facilities, are accessible to individu-als with disabilities. Once the construction or

alteration of a facility has been completed,

all other aspects of programs, services, and

activities conducted in that facility are subject

to the operational requirements established in

this final rule. Although the Department may

use the requirements of the 2010 Standardsas a guide to determining when and how

to make equipment and furnishings acces-

sible, those determinations fall within the

discretionary authority of the Department.

The Department also wishes to clarify

that the advisory notes, appendix notes,

and figures that accompany the 1991 and

2010 Standards do not establish separately

enforceable requirements unless specificallystated otherwise in the text of the standards.

This clarification has been made to address

concerns expressed by ANPRM comment-

ers who mistakenly believed that the advi-

sory notes in the 2004 ADAAG established

requirements beyond those established in the

text of the guidelines (e.g., Advisory 504.4

suggests, but does not require, that cov-

ered entities provide visual contrast on stairtread nosing to make them more visible to

individuals with low vision). The Department

received no significant comments on this

section and it is unchanged in the final rule.

Denitions of residential facilities and

transient lodging. The 2010 Standards add

a definition of “residential dwelling unit’’ and

modify the current definition of “transient

lodging.’’ Under section 106.5 of the 2010Standards, “residential dwelling unit’’ is

defined as “[a] unit intended to be used

as a residence, that is primarily long-term

in nature’’ and does not include transient





lodging, inpatient medical care, licensed

long-term care, and detention or correctional

facilities. Additionally, section 106.5 of the2010 Standards changes the definition of

“transient lodging’’ to a building or facility

“containing one or more guest room(s) for

sleeping that provides accommodations that

are primarily short-term in nature.’’ “Transient

lodging’’ does not include residential dwelling

units intended to be used as a residence.

The references to “dwelling units’’ and

“dormitories’’ that are in the definition of the

1991 Standards are omitted from the 2010Standards.

The comments about the application of

transient lodging or residential standards

to social service center establishments,

and housing at a place of education are

addressed separately below. The Department

received one additional comment on this

issue from an organization representing

emergency response personnel seeking

an exemption from the transient lodging

accessibility requirements for crew quar-

ters and common use areas serving those

crew quarters (e.g., locker rooms, exercise

rooms, day room) that are used exclusively

by on-duty emergency response person-

nel and that are not used for any public

purpose. The commenter argued that since

emergency response personnel must meetcertain physical qualifications that have

the effect of exempting persons with mobil-

ity disabilities, there is no need to build

crew quarters and common use areas

serving those crew quarters to meet the

2004 ADAAG. In addition, the commenter

argued that applying the transient lodgingstandards would impose significant costs

and create living space that is less usable

for most emergency response personnel.

The ADA does not exempt spaces because

of a belief or policy that excludes persons

with disabilities from certain work. However,

the Department believes that crew quarters

that are used exclusively as a residence

by emergency response personnel and thekitchens and bathrooms exclusively serv-

ing those quarters are more like residential

dwelling units and are therefore covered

by the residential dwelling standards in the

2010 Standards, not the transient lodging

standards. The residential dwelling stan-

dards address most of the concerns of the

commenter. For example, the commenter

was concerned that sinks in kitchens and

lavatories in bathrooms that are accessible

under the transient lodging standards would

be too low to be comfortably used by emer-

gency response personnel. The residential

dwelling standards allow such features to

be adaptable so that they would not have to

be lowered until accessibility was needed.

Similarly, grab bars and shower seats would

not have to be installed at the time of con-

struction provided that reinforcement hasbeen installed in walls and located so as

to permit their installation at a later date.






Section 35.151(e)

Social service center establishments

In the NPRM, the Department proposed a

new Sec. 35.151(e) requiring group homes,

halfway houses, shelters, or similar social

service center establishments that provide

temporary sleeping accommodations or

residential dwelling units to comply with the

provisions of the 2004 ADAAG that apply to

residential facilities, including, but not limited

to, the provisions in sections 233 and 809.

The NPRM explained that this proposal

was based on two important changes in

the 2004 ADAAG. First, for the first time,

residential dwelling units are explicitly cov-

ered in the 2004 ADAAG in section 233.

Second, the 2004 ADAAG eliminates the

language contained in the 1991 Standards

addressing scoping and technical require-

ments for homeless shelters, group homes,

and similar social service center establish-

ments. Currently, such establishments are

covered in section 9.5 of the transient lodg-

ing section of the 1991 Standards. The

deletion of section 9.5 creates an ambigu-

ity of coverage that must be addressed.

The NPRM explained the Department’s

belief that transferring coverage of social

service center establishments from the tran-sient lodging standards to the residential

facilities standards would alleviate conflict-

ing requirements for social service center

providers. The Department believes that a

substantial percentage of social service cen-

ter establishments are recipients of Federal

financial assistance from the Department ofHousing and Urban Development (HUD). The

Department of Health and Human Services

(HHS) also provides financial assistance

for the operation of shelters through the

Administration for Children and Families pro-

grams. As such, these establishments are

covered both by the ADA and section 504

of the Rehabilitation Act. UFAS is currently

the design standard for new construction

and alterations for entities subject to section504. The two design standards for accessi-

bility--the 1991 Standards and UFAS--have

confronted many social service providers

with separate, and sometimes conflicting,

requirements for design and construction

of facilities. To resolve these conflicts, the

residential facilities standards in the 2004

ADAAG have been coordinated with the sec-

tion 504 requirements. The transient lodging

standards, however, are not similarly coordi-

nated. The deletion of section 9.5 of the 1991

Standards from the 2004 ADAAG presented

two options: (1) Require coverage under the

transient lodging standards, and subject such

facilities to separate, conflicting requirements

for design and construction; or (2) require

coverage under the residential facilities stan-

dards, which would harmonize the regulatory

requirements under the ADA and section 504.The Department chose the option that harmo-

nizes the regulatory requirements: coverage

under the residential facilities standards.





In the NPRM, the Department expressed

concern that the residential facilities stan-

dards do not include a requirement for clearfloor space next to beds similar to the require-

ment in the transient lodging standards and

as a result, the Department proposed adding

a provision that would require certain social


sleeping rooms with more than 25 beds to

ensure that a minimum of 5 percent of the

beds have clear floor space in accordance

with section 806.2.3 or 2004 ADAAG.

In the NPRM, the Department requested

information from providers who oper-

ate homeless shelters, transient group

homes, halfway houses, and other social

service center establishments, and from

the clients of these facilities who would be

affected by this proposed change, asking,

“[t]o what extent have conflicts between the

ADA and section 504 affected these facili-

ties? What would be the effect of applying

the residential dwelling unit requirements

to these facilities, rather than the require-

ments for transient lodging guest rooms?’’

73 FR 34466, 34491 (June 17, 2008).

Many of the commenters supported apply-

ing the residential facilities requirements to

social service center establishments, stat-

ing that even though the residential facili-ties requirements are less demanding in

some instances, the existence of one clear

standard will result in an overall increased

level of accessibility by eliminating the

confusion and inaction that are sometimes

caused by the current existence of mul-

tiple requirements. One commenter alsostated that “it makes sense to treat social

service center establishments like resi-

dential facilities because this is how these

establishments function in practice.’’

Two commenters agreed with apply-

ing the residential facilities requirements

to social service center establishments

but recommended adding a require-

ment for various bathing options, suchas a roll-in shower (which is not required

under the residential standards).

One commenter objected to the change

and asked the Department to require that

social service center establishments con-

tinue to comply with the transient lodg-

ing standards. One commenter stated

that it did not agree that the standards for

residential coverage would serve persons

with disabilities as well as the 1991 tran-

sient lodging standards. This commenter

expressed concern that the Department

had eliminated guidance for social service

agencies and that the rule should be put on

hold until those safeguards are restored.

Another commenter argued that the rule

that would provide the greatest access for

persons with disabilities should prevail.

Several commenters argued for the appli-

cation of the transient lodging standards to all

social service center establishments except






those that were “intended as a person’s place

of abode,’’ referencing the Department’s

question related to the definition of “placeof lodging’’ in the title III NPRM. One com-

menter stated that the International Building

Code requires accessible units in all tran-

sient facilities. The commenter expressed

concern that group homes should be built

to be accessible, rather than adaptable.

The Department continues to be con-

cerned about alleviating the challenges for

social service providers that are also subjectto section 504 and would likely be subject

to conflicting requirements if the transient

lodging standards were applied. Thus, the

Department has retained the requirement that

social service center establishments comply

with the residential dwelling standards. The

Department believes, however, that social


emergency shelter to large transient popu-

lations should be able to provide bathing

facilities that are accessible to persons with

mobility disabilities who need roll-in show-

ers. Because of the transient nature of the

population of these large shelters, it will not

be feasible to modify bathing facilities in a

timely manner when faced with a need to

provide a roll-in shower with a seat when

requested by an overnight visitor. As a result,

the Department has added a requirementthat social service center establishments with

sleeping accommodations for more than 50

individuals must provide at least one roll-in

shower with a seat that complies with the

relevant provisions of section 608 of the 2010

Standards. Transfer-type showers are not

permitted in lieu of a roll-in shower with a seatand the exceptions in sections 608.3 and

608.4 for residential dwelling units are not

permitted. When separate shower facilities

are provided for men and for women, at least

one roll-in shower shall be provided for each

group. This supplemental requirement to the

residential facilities standards is in addition

to the supplemental requirement that was

proposed in the NPRM for clear floor space

in sleeping rooms with more than 25 beds.

The Department also notes that while

dwelling units at some social service center

establishments are also subject to the Fair

Housing Act (FHAct) design and construc-

tion requirements that require certain fea-

tures of adaptable and accessible design,

FHAct units do not provide the same level

of accessibility that is required for residen-tial facilities under the 2010 Standards.

The FHAct requirements, where also appli-

cable, should not be considered a sub-

stitute for the 2010 Standards. Rather,

the 2010 Standards must be followed in

addition to the FHAct requirements.

The Department also notes that where-

as the NPRM used the term “social ser-

vice establishment,’’ the final rule usesthe term “social service center establish-

ment.’’ The Department has made this

editorial change so that the final rule is

consistent with the terminology used in

the ADA. See 42 U.S.C. 12181(7)(k).





Section 35.151(f)

Housing at a place of education

The Department of Justice and the

Department of Education share responsi-

bility for regulation and enforcement of the

ADA in postsecondary educational settings,

including its requirements for architectural

features. In addition, the Department of

Housing and Urban Development (HUD) has

enforcement responsibility for housing sub-

ject to title II of the ADA. Housing facilities in

educational settings range from traditionalresidence halls and dormitories to apartment

or townhouse-style residences. In addition

to title II of the ADA, public universities and

schools that receive Federal financial assis-

tance are also subject to section 504, which

contains its own accessibility requirements

through the application of UFAS. Residential

housing in an educational setting is also

covered by the FHAct, which requires newlyconstructed multifamily housing to include

certain features of accessible and adaptable

design. Covered entities subject to the ADA

must always be aware of, and comply with,

any other Federal statutes or regulations that

govern the operation of residential properties.

Although the 1991 Standards mention

dormitories as a form of transient lodging,

they do not specifically address how the ADAapplies to dormitories or other types of resi-

dential housing provided in an educational

setting. The 1991 Standards also do not

contain any specific provisions for residential

facilities, allowing covered entities to elect

to follow the residential standards contained

in UFAS. Although the 2004 ADAAG con-tains provisions for both residential facili-

ties and transient lodging, the guidelines do

not indicate which requirements apply to

housing provided in an educational setting,

leaving it to the adopting agencies to make

that choice. After evaluating both sets of

standards, the Department concluded that

the benefits of applying the transient lodg-

ing standards outweighed the benefits of

applying the residential facilities standards.

Consequently, in the NPRM, the Department

proposed a new Sec. 35.151(f) that provided

that residence halls or dormitories operated

by or on behalf of places of education shall

comply with the provisions of the proposed

standards for transient lodging, including,

but not limited to, the provisions in sec-

tions 224 and 806 of the 2004 ADAAG.

Both public and private school housing

facilities have varied characteristics. College

and university housing facilities typically pro-

vide housing for up to one academic year,

but may be closed during school vacation

periods. In the summer, they are often used

for short-term stays of one to three days,

a week, or several months. Graduate and

faculty housing is often provided year-round

in the form of apartments, which may serveindividuals or families with children. These

housing facilities are diverse in their layout.

Some are double-occupancy rooms with a

shared toilet and bathing room, which may be






inside or outside the unit. Others may contain

cluster, suite, or group arrangements where

several rooms are located inside a definedunit with bathing, kitchen, and similar com-

mon facilities. In some cases, these suites

are indistinguishable in features from tradi-

tional apartments. Universities may build their

own housing facilities or enter into agree-

ments with private developers to build, own,

or lease housing to the educational institution

or to its students. Academic housing may be

located on the campus of the university or

may be located in nearby neighborhoods.

Throughout the school year and the sum-

mer, academic housing can become pro-

gram areas in which small groups meet,

receptions and educational sessions are

held, and social activities occur. The abil-

ity to move between rooms--both acces-

sible rooms and standard rooms--in order

to socialize, to study, and to use all publicuse and common use areas is an essential

part of having access to these educational

programs and activities. Academic housing

is also used for short-term transient educa-

tional programs during the time students are

not in regular residence and may be rented

out to transient visitors in a manner similar

to a hotel for special university functions.

The Department was concerned thatapplying the new construction requirements

for residential facilities to educational hous-

ing facilities could hinder access to educa-

tional programs for students with disabilities.

Elevators are not generally required under

the 2004 ADAAG residential facilities stan-

dards unless they are needed to providean accessible route from accessible units

to public use and common use areas, while

under the 2004 ADAAG as it applies to other

types of facilities, multistory public facilities

must have elevators unless they meet very

specific exceptions. In addition, the residen-

tial facilities standards do not require acces-

sible roll-in showers in bathrooms, while the

transient lodging requirements require some

of the accessible units to be served by bath-rooms with roll-in showers. The transient

lodging standards also require that a greater

number of units have accessible features

for persons with communication disabilities.

The transient lodging standards provide for

installation of the required accessible fea-

tures so that they are available immediately,

but the residential facilities standards allow

for certain features of the unit to be adapt-able. For example, only reinforcements for

grab bars need to be provided in residential

dwellings, but the actual grab bars must be

installed under the transient lodging stan-

dards. By contrast, the residential facilities

standards do require certain features that

provide greater accessibility within units, such

as more usable kitchens, and an accessible

route throughout the dwelling. The residen-

tial facilities standards also require 5 percentof the units to be accessible to persons with

mobility disabilities, which is a continuation

of the same scoping that is currently required

under UFAS, and is therefore applicable to





any educational institution that is covered by

section 504. The transient lodging standards

require a lower percentage of accessiblesleeping rooms for facilities with large num-

bers of rooms than is required by UFAS. For

example, if a dormitory had 150 rooms, the

transient lodging standards would require

seven accessible rooms while the residen-

tial standards would require eight. In a large

dormitory with 500 rooms, the transient lodg-

ing standards would require 13 accessible

rooms and the residential facilities standards

would require 25. There are other differencesbetween the two sets of standards as well

with respect to requirements for accessible

windows, alterations, kitchens, accessible

route throughout a unit, and clear floor space

in bathrooms allowing for a side transfer.

In the NPRM, the Department requested

public comment on how to scope educa-

tional housing facilities, asking, “[w]ouldthe residential facility requirements or the

transient lodging requirements in the 2004

ADAAG be more appropriate for housing at

places of education? How would the different

requirements affect the cost when building

new dormitories and other student hous-

ing?’’ 73 FR 34466, 34492 (June 17, 2008).

The vast majority of the comments

received by the Department advocated usingthe residential facilities standards for hous-

ing at a place of education instead of the

transient lodging standards, arguing that

housing at places of public education are in

fact homes for the students who live in them.

These commenters argued, however, that

the Department should impose a requirementfor a variety of options for accessible bathing

and should ensure that all floors of dormito-

ries be accessible so that students with dis-

abilities have the same opportunities to par-

ticipate in the life of the dormitory community

that are provided to students without disabili-

ties. Commenters representing persons with

disabilities and several individuals argued

that, although the transient lodging standards

may provide a few more accessible features(such as roll-in showers), the residential facili-

ties standards would ensure that students

with disabilities have access to all rooms in

their assigned unit, not just to the sleeping

room, kitchenette, and wet bar. One com-

menter stated that, in its view, the residen-

tial facilities standards were congruent with

overlapping requirements from HUD, and

that access provided by the residential facili-

ties requirements within alterations would

ensure dispersion of accessible features

more effectively. This commenter also argued

that while the increased number of required

accessible units for residential facilities as

compared to transient lodging may increase

the cost of construction or alteration, this cost

would be offset by a reduced need to adapt

rooms later if the demand for accessible

rooms exceeds the supply. The commenteralso encouraged the Department to impose

a visitability (accessible doorways and nec-

essary clear floor space for turning radius)

requirement for both the residential facilities






and transient lodging requirements to allow

students with mobility impairments to interact

and socialize in a fully integrated fashion.

Two commenters supported the

Department’s proposed approach. One

commenter argued that the transient lodg-

ing requirements in the 2004 ADAAG would

provide greater accessibility and increase

the opportunity of students with disabilities

to participate fully in campus life. A sec-

ond commenter generally supported the

provision of accessible dwelling units at

places of education, and pointed out that

the relevant scoping in the International

Building Code requires accessible units

“consistent with hotel accommodations.’’

The Department has considered the com-

ments recommending the use of the residen-

tial facilities standards and acknowledges

that they require certain features that are notincluded in the transient lodging standards

and that should be required for housing pro-

vided at a place of education. In addition,

the Department notes that since educational

institutions often use their academic hous-

ing facilities as short-term transient lodging

in the summers, it is important that acces-

sible features be installed at the outset. It is

not realistic to expect that the educational

institution will be able to adapt a unit in atimely manner in order to provide acces-

sible accommodations to someone attending

a one-week program during the summer.

The Department has determined that the

best approach to this type of housing is to

continue to require the application of tran-sient lodging standards, but at the same

time to add several requirements drawn from

the residential facilities standards related

to accessible turning spaces and work sur-

faces in kitchens, and the accessible route

throughout the unit. This will ensure the main-

tenance of the transient lodging standard

requirements related to access to all floors

of the facility, roll-in showers in facilities with

more than 50 sleeping rooms, and otherimportant accessibility features not found in

the residential facilities standards, but will

also ensure usable kitchens and access

to all the rooms in a suite or apartment.

The Department has added a new defini-

tion to Sec. 35.104, “Housing at a Place of

Education,’’ and has revised Sec. 35.151(f)

to reflect the accessible features that nowwill be required in addition to the require-

ments set forth under the transient lodging

standards. The Department also recognizes

that some educational institutions provide

some residential housing on a year-round

basis to graduate students and staff which

is comparable to private rental housing, and

which contains no facilities for educational

programming. Section 35.151(f)(3) exempts

from the transient lodging standards apart-ments or townhouse facilities provided by

or on behalf of a place of education that are

leased on a year-round basis exclusively

to graduate students or faculty, and do not





contain any public use or common use areas

available for educational programming;

instead, such housing shall comply with therequirements for residential facilities in sec-

tions 233 and 809 of the 2010 Standards.

Section 35.151(f) uses the term “sleep-

ing room’’ in lieu of the term “guest room,’’

which is the term used in the transient lodg-

ing standards. The Department is using

this term because it believes that, for the

most part, it provides a better description

of the sleeping facilities used in a placeof education than “guest room.’’ The final

rule states that the Department intends the

terms to be used interchangeably in the

application of the transient lodging stan-

dards to housing at a place of education.

Section 35.151(g)

Assembly areas

In the NPRM, the Department pro-

posed Sec. 35.151(g) to supplement the

assembly area requirements of the 2004

ADAAG, which the Department is adopting

as part of the 2010 Standards. The NPRM

proposed at Sec. 35.151(g)(1) to require

wheelchair spaces and companion seat-

ing locations to be dispersed to all levels

of the facility and are served by an acces-

sible route. The Department received nosignificant comments on this paragraph

and has decided to adopt the proposed

language with minor modifications. The

Department has retained the substance of

this section in the final rule but has clarified

that the requirement applies to stadiums,

arenas, and grandstands. In addition, theDepartment has revised the phrase “wheel-

chair and companion seating locations’’ to

“wheelchair spaces and companion seats.’’

Section 35.151(g)(1) ensures that there

is greater dispersion of wheelchair spaces

and companion seats throughout stadi-

ums, arenas, and grandstands than would

otherwise be required by sections 221 and

802 of the 2004 ADAAG. In some cases,the accessible route may not be the same

route that other individuals use to reach

their seats. For example, if other patrons

reach their seats on the field by an inac-

cessible route (e.g., by stairs), but there

is an accessible route that complies with

section 206.3 of the 2010 Standards that

could be connected to seats on the field,

wheelchair spaces and companion seatsmust be placed on the field even if that route

is not generally available to the public.

Regulatory language that was included in

the 2004 ADAAG advisory, but that did not

appear in the NPRM, has been added by the

Department in Sec. 35.151(g)(2). Section

35.151(g)(2) now requires an assembly

area that has seating encircling, in whole

or in part, a field of play or performancearea such as an arena or stadium, to place

wheelchair spaces and companion seats

around the entire facility. This rule, which

is designed to prevent a public entity from






placing wheelchair spaces and compan-

ion seats on one side of the facility only, is

consistent with the Department’s enforce-ment practices and reflects its interpretation

of section 4.33.3 of the 1991 Standards.


Sec. 35.151(g)(2) which prohibits wheel-

chair spaces and companion seating loca-

tions from being “located on, (or obstructed

by) temporary platforms or other move-

able structures.’’ Through its enforcement

actions, the Department discovered thatsome venues place wheelchair spaces and

companion seats on temporary platforms

that, when removed, reveal conventional

seating underneath, or cover the wheel-

chair spaces and companion seats with

temporary platforms on top of which they

place risers of conventional seating. These

platforms cover groups of conventional

seats and are used to provide groups ofwheelchair seats and companion seats.

Several commenters requested an excep-

tion to the prohibition of the use of temporary

platforms for public entities that sell most

of their tickets on a season-ticket or other

multi-event basis. Such commenters argued

that they should be able to use temporary

platforms because they know, in advance,

that the patrons sitting in certain areasfor the whole season do not need wheel-

chair spaces and companion seats. The

Department declines to adopt such an excep-

tion. As it explained in detail in the NPRM, the

Department believes that permitting the use

of movable platforms that seat four or more

wheelchair users and their companions havethe potential to reduce the number of avail-

able wheelchair seating spaces below the

level required, thus reducing the opportuni-

ties for persons who need accessible seating

to have the same choice of ticket prices and

amenities that are available to other patrons

in the facility. In addition, use of removable

platforms may result in instances where

last minute requests for wheelchair and

companion seating cannot be met becauseentire sections of accessible seating will be

lost when a platform is removed. See 73

FR 34466, 34493 (June 17, 2008). Further,

use of temporary platforms allows facilities

to limit persons who need accessible seat-

ing to certain seating areas, and to relegate

accessible seating to less desirable loca-

tions. The use of temporary platforms has

the effect of neutralizing dispersion and otherseating requirements (e.g., line of sight) for

wheelchair spaces and companion seats.

Cf. Independent Living Resources v. Oregon

Arena Corp., 1 F. Supp. 2d 1159, 1171 (D.

Or. 1998) (holding that while a public accom-

modation may “infill’’ wheelchair spaces with

removable seats when the wheelchair spaces

are not needed to accommodate individuals

with disabilities, under certain circumstances

“[s]uch a practice might well violate the rulethat wheelchair spaces must be dispersed

throughout the arena in a manner that is

roughly proportionate to the overall distribu-

tion of seating’’). In addition, using temporary





platforms to convert unsold wheelchair

spaces to conventional seating undermines

the flexibility facilities need to accommodatesecondary ticket markets exchanges as

required by Sec. 35.138(g) of the final rule.

As the Department explained in the NPRM,

however, this provision was not designed

to prohibit temporary seating that increases

seating for events (e.g., placing temporary

seating on the floor of a basketball court

for a concert). Consequently, the final rule,

at Sec. 35.151(g)(3), has been amended

to clarify that if an entire seating section

is on a temporary platform for a particular

event, then wheelchair spaces and com-

panion seats may be in that seating section.

However, adding a temporary platform to

create wheelchair spaces and companion

seats that are otherwise dissimilar from

nearby fixed seating and then simply add-

ing a small number of additional seats tothe platform would not qualify as an “entire

seating section’’ on the platform. In addi-

tion, Sec. 35.151(g)(3) clarifies that facilities

may fill in wheelchair spaces with removable

seats when the wheelchair spaces are not

needed by persons who use wheelchairs.

The Department has been responsive to

assembly areas’ concerns about reduced

revenues due to unused accessible seating. Accordingly, the Department has reduced

scoping requirements significantly--by

almost half in large assembly areas--and

determined that allowing assembly areas to

infill unsold wheelchair spaces with readily

removable temporary individual seats appro-

priately balances their economic concerns

with the rights of individuals with disabilities.See section 221.2 of the 2010 Standards.

For stadium-style movie theaters, in

Sec. 35.151(g)(4) of the NPRM the

Department proposed requiring placement of

wheelchair seating spaces and companion

seats on a riser or cross-aisle in the stadium

section of the theater and placement of such

seating so that it satisfies at least one of

the following criteria: (1) It is located within

the rear 60 percent of the seats provided

in the auditorium; or (2) it is located within

the area of the auditorium where the verti-

cal viewing angles are between the 40th to

100th percentile of vertical viewing angles

for all seats in that theater as ranked from

the first row (1st percentile) to the back

row (100th percentile). The vertical view-

ing angle is the angle between a horizontalline perpendicular to the seated viewer’s

eye to the screen and a line from the seated

viewer’s eye to the top of the screen.

The Department proposed this bright-line

rule for two reasons: (1) The movie theater

industry petitioned for such a rule; and (2) the

Department has acquired expertise on the

design of stadium style theaters from litigation

against several major movie theater chains.See U.S. v. AMC Entertainment, 232 F.

Supp. 2d 1092 (C.D. Ca. 2002), rev’d in

part, 549 F. 3d 760 (9th Cir. 2008); U.S. v.

Cinemark USA, Inc., 348 F. 3d 569 (6th Cir.

2003), cert. denied, 542 U.S. 937 (2004).






Two industry commenters--at least one of

whom otherwise supported this rule--re-

quested that the Department explicitly statethat this rule does not apply retroactively to

existing theaters. Although this rule on its

face applies to new construction and altera-

tions, these commenters were concerned

that the rule could be interpreted to apply

retroactively because of the Department’s

statement in the ANPRM that this bright-

line rule, although newly-articulated, does

not represent a “substantive change from

the existing line-of-sight requirements’’ ofsection 4.33.3 of the 1991 Standards. See

69 FR 58768, 58776 (Sept. 30, 2004).

Although the Department intends for

Sec. 35.151(g)(4) of this rule to apply pro-

spectively to new construction and altera-

tions, this rule is not a departure from, and is

consistent with, the line-of-sight requirements

in the 1991 Standards. The Department has

always interpreted the line-of-sight require-

ments in the 1991 Standards to require

viewing angles provided to patrons who use

wheelchairs to be comparable to those afford-

ed to other spectators. Section 35.151(g)(4)

merely represents the application of these

requirements to stadium-style movie theaters.

One commenter from a trade association

sought clarification whether Sec. 35.151(g)(4)applies to stadium-style theaters with more

than 300 seats, and argued that it should not

since dispersion requirements apply in those

theaters. The Department declines to limit

this rule to stadium-style theaters with 300 or

fewer seats; stadium-style theaters of all siz-

es must comply with this rule. So, for exam-

ple, stadium-style theaters that must verticallydisperse wheelchair and companion seats

must do so within the parameters of this rule.

The NPRM included a provision that

required assembly areas with more than

5,000 seats to provide at least five wheel-

chair spaces with at least three compan-

ion seats for each of those five wheelchair

spaces. The Department agrees with com-

menters who asserted that group seating isbetter addressed through ticketing policies

rather than design and has deleted that pro-

vision from this section of the final rule.

Section 35.151(h)

Medical care facilities

In the 1991 title II regulation, there was

no provision addressing the dispersion of

accessible sleeping rooms in medical care

facilities. The Department is aware, however,

of problems that individuals with disabilities

face in receiving full and equal medical care

when accessible sleeping rooms are not ade-

quately dispersed. When accessible rooms

are not fully dispersed, a person with a dis-

ability is often placed in an accessible room

in an area that is not medically appropriate

for his or her condition, and is thus deniedquick access to staff with expertise in that

medical specialty and specialized equipment.

While the Access Board did not establish

specific design requirements for dispersion





in the 2004 ADAAG, in response to exten-

sive comments in support of dispersion it

added an advisory note, Advisory 223.1General, encouraging dispersion of acces-

sible rooms within the facility so that acces-

sible rooms are more likely to be proximate

to appropriate qualified staff and resources.

In the NPRM, the Department sought addi-

tional comment on the issue, asking whether

it should require medical care facilities,

such as hospitals, to disperse their acces-

sible sleeping rooms, and if so, by whatmethod (by specialty area, floor, or other

criteria). All of the comments the Department

received on this issue supported dispers-

ing accessible sleeping rooms proportionally

by specialty area. These comments, from

individuals, organizations, and a building

code association, argued that it would not

be difficult for hospitals to disperse rooms

by specialty area, given the high level ofregulation to which hospitals are subject

and the planning that hospitals do based

on utilization trends. Further, commenters

suggested that without a requirement, it is

unlikely that hospitals would disperse the

rooms. In addition, concentrating acces-

sible rooms in one area perpetuates seg-

regation of individuals with disabilities,

which is counter to the purpose of the ADA.

The Department has decided to require

medical care facilities to disperse their acces-

sible sleeping rooms in a manner that is

proportionate by type of medical specialty.

This does not require exact mathemati-

cal proportionality, which at times would be

impossible. However, it does require thatmedical care facilities disperse their acces-

sible rooms by medical specialty so that

persons with disabilities can, to the extent

practical, stay in an accessible room within

the wing or ward that is appropriate for their

medical needs. The language used in this

rule (“in a manner that is proportionate by

type of medical specialty’’) is more specific

than that used in the NPRM (“in a manner

that enables patients with disabilities to haveaccess to appropriate specialty services’’)

and adopts the concept of proportionality

proposed by the commenters. Accessible

rooms should be dispersed throughout all

medical specialties, such as obstetrics,

orthopedics, pediatrics, and cardiac care.

Section 35.151(i) Curb ramps

Section 35.151(e) on curb ramps in the

1991 rule has been redesignated as

Sec. 35.151(i). In the NPRM, the Department

proposed making a minor editorial change

to this section, deleting the phrase “other

sloped areas’’ from the two places in which

it appears in the 1991 title II regulation. In

the NPRM, the Department stated that the

phrase “other sloped areas’’ lacks technical

precision. The Department received no sig-nificant public comments on this proposal.

Upon further consideration, however, the

Department has concluded that the regula-

tion should acknowledge that there are times






when there are transitions from sidewalk to

road surface that do not technically qualify

as “curb ramps’’ (sloped surfaces that havea running slope that exceed 5 percent).

Therefore, the Department has decided not

to delete the phrase “other sloped areas.’’

Section 35.151(j)

Residential housing for sale to

individual owners

Although public entities that operate resi-

dential housing programs are subject to titleII of the ADA, and therefore must provide

accessible residential housing, the 1991

Standards did not contain scoping or tech-

nical standards that specifically applied to

residential housing units. As a result, under

the Department’s title II regulation, these

agencies had the choice of complying with

UFAS, which contains specific scoping and

technical standards for residential hous-ing units, or applying the ADAAG transient

lodging standards to their housing. Neither

UFAS nor the 1991 Standards distinguish

between residential housing provided for

rent and those provided for sale to individual

owners. Thus, under the 1991 title II regula-

tion, public entities that construct residential

housing units to be sold to individual owners

must ensure that some of those units are

accessible. This requirement is in additionto any accessibility requirements imposed

on housing programs operated by public

entities that receive Federal financial assis-

tance from Federal agencies such as HUD.

The 2010 Standards contain scoping and

technical standards for residential dwell-

ing units. However, section 233.3.2 of the2010 Standards specifically defers to the

Department and to HUD, the standard-setting

agency under the ABA, to decide the appro-

priate scoping for those residential dwelling

units built by or on behalf of public entities

with the intent that the finished units will be

sold to individual owners. These programs

include, for example, HUD’s public housing

and HOME programs as well as State-funded

programs to construct units for sale to indi-viduals. In the NPRM, the Department did

not make a specific proposal for this scop-

ing. Instead, the Department stated that after

consultation and coordination with HUD,

the Department would make a determina-

tion in the final rule. The Department also

sought public comment on this issue stat-

ing that “[t]he Department would welcome

recommendations from individuals withdisabilities, public housing authorities, and

other interested parties that have experi-

ence with these programs. Please comment

on the appropriate scoping for residential

dwelling units built by or on behalf of pub-

lic entities with the intent that the finished

units will be sold to individual owners.’’

73 FR 34466, 34492 (June 17, 2008).

All of the public comments received bythe Department in response to this question

were supportive of the Department’s ensuring

that the residential standards apply to hous-

ing built on behalf of public entities with the





intent that the finished units would be sold to

individual owners. The vast majority of com-

menters recommended that the Departmentrequire that projects consisting of five or more

units, whether or not the units are located

on one or multiple locations, comply with

the 2004 ADAAG requirements for scoping

of residential units, which require that 5 per-

cent, and no fewer than one, of the dwelling

units provide mobility features, and that 2

percent, and no fewer than one, of the dwell-

ing units provide communication features.

See 2004 ADAAG Section 233.3. These

commenters argued that the Department

should not defer to HUD because HUD has

not yet adopted the 2004 ADAAG and there

is ambiguity on the scope of coverage of

pre-built for sale units under HUD’s current

section 504 regulations. In addition, these

commenters expressed concern that HUD’s

current regulation, 24 CFR 8.29, presumes

that a prospective buyer is identified beforedesign and construction begins so that dis-

ability features can be incorporated prior

to construction. These commenters stated

that State and Federally funded homeown-

ership programs typically do not identify

prospective buyers before construction has

commenced. One commenter stated that,

in its experience, when public entities build

accessible for-sale units, they often sell

these units through a lottery system thatdoes not make any effort to match persons

who need the accessible features with the

units that have those features. Thus, acces-

sible units are often sold to persons without

disabilities. This commenter encouraged the

Department to make sure that accessible

for-sale units built or funded by public enti-ties are placed in a separate lottery restricted

to income-eligible persons with disabilities.

Two commenters recommended that the

Department develop rules for four types

of for-sale projects: single family pre-built

(where buyer selects the unit after construc-

tion), single family post-built (where the buyer

chooses the model prior to its construction),

multi-family pre-built, and multi-family post-

built. These commenters recommended that

the Department require pre-built units to

comply with the 2004 ADAAG 233.1 scoping

requirements. For post-built units, the com-

menters recommended that the Department

require all models to have an alternate

design with mobility features and an alter-

nate design with communications features

in compliance with 2004 ADAAG. Accessiblemodels should be available at no extra cost

to the buyer. One commenter recommended

that, in addition to required fully accessible

units, all ground floor units should be read-

ily convertible for accessibility or for sensory

impairments technology enhancements.

The Department believes that consistent

with existing requirements under title II, hous-

ing programs operated by public entitiesthat design and construct or alter residential

units for sale to individual owners should

comply with the 2010 Standards, including

the requirements for residential facilities in






sections 233 and 809. These requirements

will ensure that a minimum of 5 percent of

the units, but no fewer than one unit, of thetotal number of residential dwelling units will

be designed and constructed to be acces-

sible for persons with mobility disabilities. At

least 2 percent, but no fewer than one unit,

of the total number of residential dwelling

units shall provide communication features.

The Department recognizes that there

are some programs (such as the one

identified by the commenter), in which

units are not designed and constructed

until an individual buyer is identified. In

such cases, the public entity is still obligated

to comply with the 2010 Standards. In addi-

tion, the public entity must ensure that pre-

identified buyers with mobility disabilities and

visual and hearing disabilities are afforded

the opportunity to buy the accessible units.

Once the program has identified buyers whoneed the number of accessible units man-

dated by the 2010 Standards, it may have

to make reasonable modifications to its poli-

cies, practices, and procedures in order to

provide accessible units to other buyers

with disabilities who request such units.

The Department notes that the residen-

tial facilities standards allow for construction

of units with certain features of adaptabil-ity. Public entities that are concerned that

fully accessible units are less marketable

may choose to build these units to include

the allowable adaptable features, and then

adapt them at their own expense for buyers

with mobility disabilities who need acces-

sible units. For example, features suchas grab bars are not required but may be

added by the public entity if needed by the

buyer at the time of purchase and cabi-

nets under sinks may be designed to be

removable to allow access to the required

knee space for a forward approach.

The Department agrees with the com-

menters that covered entities may have to

make reasonable modifications to their poli-

cies, practices, and procedures in order to

ensure that when they offer pre-built acces-

sible residential units for sale, the units are

offered in a manner that gives access to

those units to persons with disabilities who

need the features of the units and who are

otherwise eligible for the housing program.

This may be accomplished, for example, by

adopting preferences for accessible unitsfor persons who need the features of the

units, holding separate lotteries for acces-

sible units, or other suitable methods hat

result in the sale of accessible units to per-

sons who need the features of such units.

In addition, the Department believes that

units designed and constructed or altered

that comply with the requirements for resi-

dential facilities and are offered for sale to

individuals must be provided at the sameprice as units without such features.





Section 35.151(k)

Detention and correctional facilities

The 1991 Standards did not contain spe-

cific accessibility standards applicable to

cells in correctional facilities. However, cor-

rectional and detention facilities operated by

or on behalf of public entities have always

been subject to the nondiscrimination and

program accessibility requirements of title

II of the ADA. The 2004 ADAAG estab-

lished specific requirements for the design

and construction and alterations of cells

in correctional facilities for the first time.

Based on complaints received by the

Department, investigations, and compliance

reviews of jails, prisons, and other detention

and correctional facilities, the Department

has determined that many detention and cor-

rectional facilities do not have enough acces-

sible cells, toilets, and shower facilities tomeet the needs of their inmates with mobility

disabilities and some do not have any at all.

Inmates are sometimes housed in medical

units or infirmaries separate from the gen-

eral population simply because there are no

accessible cells. In addition, some inmates

have alleged that they are housed at a more

restrictive classification level simply because

no accessible housing exists at the appropri-

ate classification level. The Department’scompliance reviews and investigations have

substantiated certain of these allegations.

The Department believes that the insuf-

ficient number of accessible cells is, in part,

due to the fact that most jails and prisonswere built long before the ADA became law

and, since then, have undergone few altera-

tions that would trigger the obligation to pro-

vide accessible features in accordance with

UFAS or the 1991 Standards. In addition,

the Department has found that even some

new correctional facilities lack accessible

features. The Department believes that the

unmet demand for accessible cells is also

due to the changing demographics of the

inmate population. With thousands of prison-

ers serving life sentences without eligibility for

parole, prisoners are aging, and the prison

population of individuals with disabilities and

elderly individuals is growing. A Bureau of

Justice Statistics study of State and Federal

sentenced inmates (those sentenced to more

than one year) shows the total estimated

count of State and Federal prisoners aged55 and older grew by 36,000 inmates from

2000 (44,200) to 2006 (80,200). William

J. Sabol et al., Prisoners in 2006, Bureau

of Justice Statistics Bulletin, Dec. 2007, at

23 (app. table 7), available at http://bjs.ojp.

usdoj.gov/index.cfm?ty=pbdetail&iid=908

(last visited July 16, 2008); Allen J. Beck

et al., Prisoners in 2000, Bureau of Justice

Statistics Bulletin, Aug. 2001, at 10 (Aug.

2001) (Table 14), available at bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=927 (last

visited July 16, 2008). This jump consti-

tutes an increase of 81 percent in prison-

ers aged 55 and older during this period.







new section, Sec. 35.152, which combined a

range of provisions relating to both programaccessibility and application of the proposed

standards to detention and correctional

facilities. In the final rule, the Department is

placing those provisions that refer to design,

construction, and alteration of detention and

correction facilities in a new paragraph (k)

of Sec. 35.151, the section of the rule that

addresses new construction and alterations

for covered entities. Those portions of the

final rule that address other issues, suchas placement policies and program acces-

sibility, are placed in the new Sec. 35.152.

In the NPRM, the Department also

sought input on how best to meet the

needs of inmates with mobility disabilities

in the design, construction, and altera-

tion of detention and correctional facili-

ties. The Department received a number ofcomments in response to this question.

New Construction. The NPRM did not

expressly propose that new construction

of correctional and detention facilities

shall comply with the proposed standards

because the Department assumed it would

be clear that the requirements of Sec.

35.151 would apply to new construction

of correctional and detention facilities inthe same manner that they apply to other

facilities constructed by covered entities. The

Department has decided to create a new

section, Sec. 35.151(k)(1), which clarifies

that new construction of jails, prisons, and

other detention facilities shall comply with

the requirements of 2010 Standards. Section35.151(k)(1) also increases the scoping for

accessible cells from the 2 percent specified

in the 2004 ADAAG to 3 percent.

Alterations. Although the 2010 Standards

contain specifications for alterations in

existing detention and correctional facilities,

section 232.2 defers to the Attorney

General the decision as to the extent these

requirements will apply to alterations of cells.The NPRM proposed at Sec. 35.152(c)

that “[a]lterations to jails, prisons, and

other detention and correctional facilities

will comply with the requirements of Sec.

35.151(b).’’ 73 FR 34466, 34507 (June 17,

2008). The final rule retains that requirement

at Sec. 35.151(k)(2), but increases the

scoping for accessible cells from the 2

percent specified in the 2004 ADAAG to 3

percent.

Substitute cells. In the ANPRM, the

Department sought public comment about the

most effective means to ensure that existing

correctional facilities are made accessible to

prisoners with disabilities and presented three

options: (1) Require all altered elements to be

accessible, which would maintain the current

policy that applies to other ADA alterationrequirements; (2) permit substitute cells to

be made accessible within the same facility,

which would permit correctional authorities

to meet their obligation by providing the





required accessible features in cells within

the same facility, other than those specific

cells in which alterations are planned; or (3)permit substitute cells to be made accessible

within a prison system, which would focus on

ensuring that prisoners with disabilities are

housed in facilities that best meet their needs,

as alterations within a prison environment

often result in piecemeal accessibility.

In Sec. 35.152(c) of the NPRM, the

Department proposed language based

on Option 2, providing that when cells arealtered, a covered entity may satisfy its obli-

gation to provide the required number of

cells with mobility features by providing the

required mobility features in substitute cells

(i.e., cells other than those where altera-

tions are originally planned), provided that

each substitute cell is located within the

same facility, is integrated with other cells

to the maximum extent feasible, and has,

at a minimum, physical access equal to

that of the original cells to areas used by

inmates or detainees for visitation, dining,

recreation, educational programs, medical

services, work programs, religious services,

and participation in other programs that

the facility offers to inmates or detainees.

The Department received few comments

on this proposal. The majority who choseto comment supported an approach that

allowed substitute cells to be made acces-

sible within the same facility. In their view,

such an approach balanced administrators’

needs, cost considerations, and the needs of

inmates with disabilities. One commenter not-

ed, however, that with older facilities, requiredmodifications may be inordinately costly and

technically infeasible. A large county jail sys-

tem supported the proposed approach as

the most viable option allowing modification

or alteration of existing cells based on need

and providing a flexible approach to provide

program and mobility accessibility. It noted,

as an alternative, that permitting substitute

cells to be made accessible within a prison

system would also be a viable option sincesuch an approach could create a centralized

location for accessibility needs and, because

that jail system’s facilities were in close prox-

imity, it would have little impact on families

for visitation or on accessible programming.

A large State department of corrections

objected to the Department’s proposal. The

commenter stated that some very old prison

buildings have thick walls of concrete and

reinforced steel that are difficult, if not impos-

sible to retrofit, and to do so would be very

expensive. This State system approaches

accessibility by looking at its system as a

whole and providing access to programs for

inmates with disabilities at selected prisons.

This commenter explained that not all of

its facilities offer the same programs or the

same levels of medical or mental health ser-vices. An inmate, for example, who needs

education, substance abuse treatment, and

sex offender counseling may be transferred

between facilities in order to meet his needs.






The inmate population is always in flux and

there are not always beds or program avail-

ability for every inmate at his security level.This commenter stated that the Department’s

proposed language would put the State in the

position of choosing between adding acces-

sible cells and modifying paths of travel to

programs and services at great expense or

not altering old facilities, causing them to

become in states of disrepair and obsoles-

cent, which would be fiscally irresponsible.

The Department is persuaded by thesecomments and has modified the altera-

tions requirement in Sec. 35.151(k)(2)(iv)

in the final rule to allow that if it is techni-

cally infeasible to provide substitute cells

in the same facility, cells can be provided

elsewhere within the corrections system.

Number of accessible cells. Section 232.2.1

of the 2004 ADAAG requires at least 2

percent, but no fewer than one, of the cells in

newly constructed detention and correctional

facilities to have accessibility features for

individuals with mobility disabilities. Section

232.3 provides that, where special holding

cells or special housing cells are provided,

at least one cell serving each purpose shall

have mobility features. The Department

sought input on whether these 2004 ADAAG

requirements are sufficient to meet theneeds of inmates with mobility disabilities.

A major association representing county

jails throughout the country stated that the

2004 ADAAG 2 percent requirement for

accessible cells is sufficient to meet the

needs of county jails. Similarly, a large

county sheriff’s department advised that the2 percent requirement far exceeds the need

at its detention facility, where the average

age of the population is 32. This commenter

stressed that the regulations need to address

the differences between a local detention

facility with low average lengths of stay as

opposed to a State prison housing inmates

for lengthy periods. This commenter asserted

that more stringent requirements will raise

construction costs by requiring modificationsthat are not needed. If more stringent

requirements are adopted, the commenter

suggested that they apply only to State

and Federal prisons that house prisoners

sentenced to long terms. The Department

notes that a prisoner with a mobility disability

needs a cell with mobility features regardless

of the length of incarceration. However, the

length of incarceration is most relevant in

addressing the needs of an aging population.

The overwhelming majority of commenters

responded that the 2 percent ADAAG require-

ment is inadequate to meet the needs of the

incarcerated. Many commenters suggested

that the requirement be expanded to apply

to each area, type, use, and class of cells in

a facility. They asserted that if a facility has

separate areas for specific programs, suchas a dog training program or a substance

abuse unit, each of these areas should

also have 2 percent accessible cells but not

less than one. These same commenters





suggested that 5-7 percent of cells should

be accessible to meet the needs of both

an aging population and the larger numberof inmates with mobility disabilities. One

organization recommended that the require-

ment be increased to 5 percent overall, and

that at least 2 percent of each type and use

of cell be accessible. Another commenter

recommended that 10 percent of cells be

accessible. An organization with extensive

corrections experience noted that the integra-

tion mandate requires a sufficient number

and distribution of accessible cells so as toprovide distribution of locations relevant to

programs to ensure that persons with dis-

abilities have access to the programs.

Through its investigations and compli-

ance reviews, the Department has found

that in most detention and correctional

facilities, a 2 percent accessible cell require-

ment is inadequate to meet the needs ofthe inmate population with disabilities. That

finding is supported by the majority of the

commenters that recommended a 5-7 per-

cent requirement. Indeed, the Department

itself requires more than 2 percent of the

cells to be accessible at its own corrections

facilities. The Federal Bureau of Prisons

is subject to the requirements of the 2004

ADAAG through the General Services

Administration’s adoption of the 2004 ADAAGas the enforceable accessibility standard

for Federal facilities under the Architectural

Barriers Act of 1968. 70 FR 67786, 67846-

47 (Nov. 8, 2005). However, in order to meet

the needs of inmates with mobility disabili-

ties, the Bureau of Prisons has elected to

increase that percentage and require that3 percent of inmate housing at its facilities

be accessible. Bureau of Prisons, Design

Construction Branch, Design Guidelines,

Attachment A: Accessibility Guidelines for

Design, Construction, and Alteration of

Federal Bureau of Prisons (Oct. 31, 2006).

The Department believes that a 3 per-

cent accessible requirement is reason-

able. Moreover, it does not believe it shouldimpose a higher percentage on detention and

corrections facilities than it utilizes for its own

facilities. Thus, the Department has adopted

a 3 percent requirement in Sec. 35.151(k)

for both new construction and alterations.

The Department notes that the 3 percent

requirement is a minimum. As corrections

systems plan for new facilities or alterations,

the Department urges planners to include

numbers of inmates with disabilities in their

population projections in order to take the

necessary steps to provide a sufficient num-

ber of accessible cells to meet inmate needs.

Dispersion of Cells. The NPRM did not

contain express language addressing

dispersion of cells in a facility. However,

Advisory 232.2 of the 2004 ADAAG

recommends that “[a]ccessible cells orrooms should be dispersed among different

levels of security, housing categories, and

holding classifications (e.g., male/female

and adult/juvenile) to facilitate access.’’ In

explaining the basis for recommending,






but not requiring, this type of dispersal, the

Access Board stated that “[m]any detention

and correctional facilities are designed sothat certain areas (e.g., `shift’ areas) can be

adapted to serve as different types of housing

according to need’’ and that “[p]lacement

of accessible cells or rooms in shift areas

may allow additional flexibility in meeting

requirements for dispersion of accessible

cells or rooms.’’

The Department notes that inmates are

typically housed in separate areas of deten-tion and correctional facilities based on a

number of factors, including their classifica-

tion level. In many instances, detention and

correctional facilities have housed inmates

in inaccessible cells, even though acces-

sible cells were available elsewhere in the

facility, because there were no cells in the

areas where they needed to be housed, such

as in administrative or disciplinary segrega-

tion, the women’s section of the facility, or

in a particular security classification area.

The Department received a number of

comments stating that dispersal of acces-

sible cells together with an adequate number

of accessible cells is necessary to prevent

inmates with disabilities from placement in

improper security classification and to ensure

integration. Commenters recommendedmodification of the scoping requirements

to require a percentage of accessible cells

in each program, classification, use or ser-

vice area. The Department is persuaded by

these comments. Accordingly, Sec. 35.151(k)

(1) and (k)(2) of the final rule require acces-

sible cells in each classification area.

Medical facilities. The NPRM also did not

propose language addressing the application

of the 2004 ADAAG to medical and long-term

care facilities in correctional and detention

facilities. The provisions of the 2004 ADAAG

contain requirements for licensed medical

and long-term care facilities, but not those

that are unlicensed. A disability advocacy

group and a number of other commenters

recommended that the Department expandthe application of section 232.4 to apply to all

such facilities in detention and correctional

facilities, regardless of licensure. They

recommended that whenever a correctional

facility has a program that is addressed

specifically in the 2004 ADAAG, such as

a long-term care facility, the 2004 ADAAG

scoping and design features should apply

for those elements. Similarly, a buildingcode organization noted that its percentage

requirements for accessible units is based on

what occurs in the space, not on the building

type.

The Department is persuaded by these

comments and has added Sec. 35.151(k)

(3), which states that “[w]ith respect to

medical and long-term care facilities in jails,

prisons, and other detention and correc-tional facilities, public entities shall apply

the 2010 Standards technical and scoping

requirements for those facilities irrespective

of whether those facilities are licensed.’’





38



39

3 Public Accommodationsand Commercial Faciliti



40 - Guidance on 2010 Standards: Title III Department of Justice



Public Accommodations

and Commerical Facilities:

Guidance on the Revisions to28 CFR part 36, Subpart D

altering its facility, there should be a legal

requirement that individuals with disabili-

ties are entitled to increased accessibil-ity provided by the 2004 ADAAG for path

of travel work. These commenters also

stated that they did not believe there was

a statutory basis for “grandfathering’’ facili-

ties that comply with the 1991 Standards.

Another commenter argued that the

updates incorporated into the 2004 ADAAG

provide very substantial improvements for

access, and that since there already is a 20

percent cost limit on the amount that canbe expended on path of travel alterations,

there is no need for a further limitation.

Some commenters supported the safe

harbor as lessening the economic costs of

implementing the 2004 ADAAG for existing

facilities. One commenter also stated that

without the safe harbor, entities that already

have complied with the 1991 Standards willhave to make and pay for compliance twice,

as compared to those entities that made no

effort to comply in the first place. Another

commenter asked that the safe harbor be

revised to include pre-ADA facilities that

have been made compliant with the 1991

Standards to the extent “readily achiev-

able’’ or, in the case of alterations, “ to the

maximum extent feasible,’’ but that are not

in full compliance with the 1991 Standards.

The final rule retains the safe harbor

for required elements of a path of travel to

altered primary function areas for private

entities that already have complied with

Subpart D establishes the title III require-

ments applicable to new construction and

alterations. The Department has amended

this subpart to adopt the 2004 ADAAG,

set forth the effective dates for implemen-

tation of the 2010 Standards, and make

related revisions as described below.

Section 36.403 Alterations:

Path of Travel


one change to Sec. 36.403 on alterations

and path of travel by adding a path of travel

safe harbor. Proposed Sec. 36.403(a)

(1) stated that if a private entity hasconstructed or altered required elements

of a path of travel in accordance with the

1991 Standards, the private entity is not

required to retrofit such elements to reflect

incremental changes in the 2010 Standards

solely because of an alteration to a primary

function area served by that path of travel.

A substantial number of commenters

objected to the Department’s creation ofa safe harbor for alterations to required

elements of a path of travel that comply

with the current 1991 Standards. These

commenters argued that if a public accom-

modation already is in the process of

Guidance on 2010 Standards: Title III - 41

Subpart D - Title III Regulation




the 1991 Standards with respect to those

required elements. As discussed with

respect to Sec. 36.304, the Departmentbelieves that this safe harbor strikes an

appropriate balance between ensuring that

individuals with disabilities are provided

access to buildings and facilities and

mitigating potential financial burdens on

existing places of public accommodation

that are undertaking alterations subject to

the 2010 Standards. This safe harbor is

not a blanket exemption for facilities. If a

private entity undertakes an alteration toa primary function area, only the required

elements of a path of travel to that area that

already comply with the 1991 Standards

are subject to the safe harbor. If a private

entity undertakes an alteration to a primary

function area and the requiredelements of

a path of travel to the altered area do not

comply with the 1991 Standards, then the

private entity must bring those elements

into compliance with the 2010 Standards.

Section 36.405 Alterations:

Historic Preservation

In the 1991 rule, the Department provided

guidance on making alterations to buildings

or facilities that are eligible for listing in the

National Register of Historic Places under

the National Historic Preservation Act orthat are designated as historic under State

or local law. That provision referenced the

1991 Standards. Because those cross-refer-

ences to the 1991 Standards are no longer

applicable, it is necessary in this final rule

to provide new regulatory text. No substan-

tive change in the Department’s approachin this area is intended by this revision.

Section 36.406 Standards for

New Construction and Alterations

Applicable standards. Section 306 of the

ADA, 42 U.S.C. 12186, directs the Attorney

General to issue regulations to implement

title III that are consistent with the guide-

lines published by the Access Board. Asdescribed in greater detail elsewhere in

this Appendix, the Department is a statu-

tory member of the Access Board and was

involved significantly in the development

of the 2004 ADAAG. Nonetheless, the

Department has reviewed the standards

and has determined that additional regu-

latory provisions are necessary to clarify

how the Department will apply the 2010

Standards to places of lodging, social

service center establishments, housing at

a place of education, assembly areas, and

medical care facilities. Those provisions

are contained in Sec. 36.406(c)-(g). Each

of these provisions is discussed below.

Section 36.406(a) adopts the 2004

ADAAG as part of the 2010 Standards and

establishes the compliance date and trig-gering events for the application of those

standards to both new construction and

alterations. Appendix B of this final rule

(Analysis and Commentary on the 2010

42 - Guidance on 2010 Standards: Title III





ADA Standards for Accessible Design)

provides a description of the major changes

in the 2010 Standards (as compared tothe 1991 ADAAG) and a discussion of

the public comments that the Department

received on specific sections of the 2004

ADAAG. A number of commenters asked

the Department to revise certain provi-

sions in the 2004 ADAAG in a manner that

would reduce either the required scoping or

specific technical accessibility requirements.

As previously stated, the ADA requires the

Department to adopt standards consistentwith the guidelines adopted by the Access

Board. The Department will not adopt any

standards that provide less accessibil-

ity than is provided under the guidelines

contained in the 2004 ADAAG because the

guidelines adopted by the Access Board are

“ minimum guidelines.’’ 42 U.S.C. 12186(c).

In the NPRM, the Department specifi-

cally proposed amending Sec. 36.406(a) by

dividing it into two sections. Proposed Sec.

36.406(a)(1) specified that new construc-

tion and alterations subject to this part shall

comply with the 1991 Standards if physical

construction of the property commences

less than six months after the effective

date of the rule. Proposed Sec. 36.406(a)

(2) specified that new construction and

alterations subject to this part shall complywith the proposed standards if physical

construction of the property commences

six months or more after the effective date

of the rule. The Department also proposed

deleting the advisory information now

published in a table at Sec. 36.406(b).

Compliance date. When the ADA wasenacted, the compliance dates for various

provisions were delayed in order to provide

time for covered entities to become familiar

with their new obligations. Titles II and III

of the ADA generally became effective on

January 26, 1992, six months after the

regulations were published. See 42 U.S.C.

12131 note; 42 U.S.C. 12181 note. New

construction under title II and alterations

under either title II or title III had to complywith the design standards on that date. See

42 U.S.C. 12131 note; 42 U.S.C. 12183(a)

(2). For new construction under title III, the

requirements applied to facilities designed

and constructed for first occupancy after

January 26, 1993--18 months after the

1991 Standards were published by the

Department. See 42 U.S.C. 12183(a)(1).

The Department received numerous

comments on the issue of effective date,

many of them similar to those received

in response to the ANPRM. A substantial

number of commenters advocated a mini-

mum of 18 months from publication of the

final rule to the effective date for applica-

tion of the standards to new construction,

consistent with the time period used for

implementation of the 1991 Standards.Many of these commenters argued that the

18-month period was necessary to minimize

the likelihood of having to redesign projects

already in the design and permitting stages






at the time that the final rule is published.

According to these commenters, large

projects take several years from design tooccupancy, and can be subject to delays

from obtaining zoning, site approval, third-

party design approval (i.e., architectural

review), and governmental permits. To

the extent the new standards necessitate

changes in any previous submissions or

permits already issued, businesses might

have to expend significant funds and incur

delays due to redesign and resubmission.

Some commenters also expressed

concern that a six-month period would be

hard to implement given that many renova-

tions are planned around retail selling peri-

ods, holidays, and other seasonal concerns.

For example, hotels plan renovations during

their slow periods, retail establishments

avoid renovations during the major holiday

selling periods, and businesses in certainparts of the country cannot do any major

construction during parts of the winter.

Some commenters argued that

chain establishments need additional

time to redesign their “master facil-

ity’’ designs for replication at multiple

locations, taking into account both the

new standards and applicable State

and local accessibility requirements.

Other commenters argued for extend-

ing the effective date from six months

to a minimum of 12 months for many of

the same reasons, and one commenter

argued that there should be a tolling of the

effective date for those businesses thatare in the midst of the permitting process

if the necessary permits are delayed

due to legal challenges or other circum-

stances outside the business’s control.

Several commenters took issue with the

Department’s characterization of the 2004

ADAAG and the 1991 Standards as two

similar rules. These commenters argued that

many provisions in the 2004 ADAAG repre-sent a “substantial and significant’’ departure

from the 1991 Standards and that it will take

a great deal of time and money to identify

all the changes and implement them. In

particular, they were concerned that small

businesses lacked the internal resources

to respond quickly to the new changes and

that they would have to hire outside experts

to assist them. One commenter expressedconcern that regardless of familiarity with

the 2004 ADAAG, since the 2004 ADAAG

standards are organized in an entirely differ-

ent manner from the 1991 Standards, and

contain, in the commenter’s view, extensive

changes, it will make the shift from the old

to the new standards quite complicated.

Several commenters also took issue with

the Department’s proffered rationale thatby adopting a six-month effective date, the

Department was following the precedent of

other Federal agencies that have adopted

the 2004 ADAAG for facilities whose






accessibility they regulate. These comment-

ers argued that the Department’s title III

regulation applies to a much broader rangeand number of facilities and programs than

the other Federal agencies (i.e., Department

of Transportation and the General Services

Administration) and that those agencies

regulate accessibility primarily in either

governmental facilities or facilities oper-

ated by quasi-governmental authorities.

Several commenters representing the

travel, vacation, and golf industries arguedthat the Department should adopt a two-

year effective date for new construction.

In addition to many of the arguments

made by commenters in support of an

18-month effective date, these comment-

ers also argued that a two-year time frame

would allow States with DOJ-certified

building codes to have the time to amend

their codes to meet the 2004 ADAAGso that design professionals can work

from compatible codes and standards.

Several commenters recommended

treating alterations differently than new

construction, arguing for a one-year effec-

tive date for alterations. Another commenter

representing building officials argued

that a minimum of a six-month phase-

in for alterations was sufficient, since avery large percentage of alteration proj-

ects “are of a scale that they should be

able to accommodate the phase-in.’’

In contrast, many commenters argued

that the proposed six-month effective

date should be retained in the final rule.

The Department has been persuaded by

concerns raised by some of the comment-

ers that the six month compliance date

proposed in the NPRM for application of

the 2010 Standards may be too short for

certain projects that are already in the

midst of the design and permitting process.

The Department has determined that for

new construction and alterations, compli-ance with the 2010 Standards will not be

required until 18 months from the date

the final rule is published. This is consis-

tent with the amount of time given when

the 1991 regulation was published. Since

many State and local building codes contain

provisions that are consistent with 2004

ADAAG, the Department has decided that

public accommodations that choose tocomply with the 2010 Standards as defined

in Sec. 36.104 before the compliance

date will still be considered in compliance

with the ADA. However, public accom-

modations that choose to comply with

the 2010 Standards in lieu of the 1991

Standards prior to the compliance date

described in this rule must choose one

or the other standard, and may not rely

on some of the requirements containedin one standard and some of the require-

ments contained in the other standard.






Triggering event. In the NPRM, the

Department proposed using the start of

physical construction as the triggeringevent for applying the proposed standards

to new construction under title III. This

triggering event parallels that for the

alterations provisions (i.e., the date on

which construction begins), and would apply

clearly across all types of covered public

accommodations. The Department also

proposed that for prefabricated elements,

such as modular buildings and amusement

park rides and attractions, or installedequipment, such as ATMs, the start of

construction means the date on which the

site preparation begins. Site preparation

includes providing an accessible route to the

element.

The Department’s NPRM sought public

comment on how to define the start of

construction and the practicality of apply-

ing commencement of construction as

a triggering event. The Department also

requested input on whether the proposed

definition of the start of construction was

sufficiently clear and inclusive of different

types of facilities. The Department also

sought input about facilities subject to title

III for which commencement of construc-

tion would be ambiguous or problematic.

The Department received numer-

ous comments recommending that the

Department adopt a two-pronged approach

to defining the triggering event. In those

cases where permits are required, the

Department should use “date of permit

application’’ as the effective date trigger-ing event, and if no permit is required, the

Department should use “start of construc-

tion.’’ A number of these commenters

argued that the date of permit application

is appropriate because the applicant would

have to consider the applicable State and

Federal accessibility standards in order to

submit the designs usually required with the

application. Moreover, the date of permit

application is a typical triggering event inother code contexts, such as when jurisdic-

tions introduce an updated building code.

Some commenters expressed concern

that using the date of “ start of construc-

tion’’ was problematic because the date

can be affected by factors that are outside

the control of the owner. For example, an

owner can plan construction to start before

the new standards take effect and therefore

use the 1991 Standards in the design. If

permits are not issued in a timely manner,

then the construction could be delayed

until after the effective date, and then the

project would have to be redesigned. This

problem would be avoided if the permit

application date was the triggering event.

Two commenters expressed concern that

the term “start of construction’’ is ambigu-

ous, because it is unclear whether startof construction means the razing of struc-

tures on the site to make way for a new

facility or means site preparation, such

as regrading or laying the foundation.






One commenter recommended using

the “signing date of a construction

contract,’’ and an additional commenterrecommended that the new standards

apply only to “buildings permitted after

the effective date of the regulations.’’

One commenter stated that for facilities

that fall outside the building permit require-

ments (ATMs, prefabricated saunas, small

sheds), the triggering event should be the

date of installation, rather than the date

the space for the facility is constructed.

The Department is persuaded by

the comments to adopt a two-pronged

approach to defining the triggering event

for new construction and alterations. The

final rule states that in those cases where

permits are required, the triggering event

shall be the date when the last application

for a building permit application or permitextension is certified to be complete by a

State, county, or local government, or in

those jurisdictions where the government

does not certify completion of applica-

tions, the date when the last application

for a building permit or permit extension

is received by the State, county, or local

government. If no permits are required,

then the triggering event shall be the “start

of physical construction or alterations.’’The Department has also added clarifying

language related to the term “start of physi-

cal construction or alterations’’ to make it

clear that “start of physical construction or

alterations’’ is not intended to mean the

date of ceremonial groundbreaking or the

date a structure is razed to make it possiblefor construction of a facility to take place.

Amusement rides. Section 234 of the 2010

Standards provides accessibility guidelines

for newly designed and constructed

amusement rides. The amusement ride

provisions do not provide a “triggering

event’’ for new construction or alteration of

an amusement ride. An industry commenter

requested that the triggering event of “firstuse’’ as noted in the Advisory note to section

234.1 of the 2004 ADAAG be included in the

final rule. The Advisory note provides that

“[a] custom designed and constructed ride is

new upon its first use, which is the first time

amusement park patrons take the ride.’’ The

Department declines to treat amusement

rides differently than other types of new

construction and alterations and under thefinal rule, they are subject to Sec. 36.406(a)

(3). Thus, newly constructed and altered

amusement rides shall comply with the 2010

Standards if the start of physical construction

or the alteration is on or after 18 months

from the publication date of this rule. The

Department also notes that section 234.4.2

of the 2010 Standards only applies where the

structural or operational characteristics of an

amusement ride are altered. It does not applyin cases where the only change to a ride is

the theme.






Noncomplying new construction and

alterations. The element-by-element safe

harbor referenced in Sec. 36.304(d)(2) hasno effect on new or altered elements in

existing facilities that were subject to the

1991 Standards on the date that they were

constructed or altered, but do not comply

with the technical and scoping specifications

for those elements in the 1991 Standards.

Section 36.406(a)(5) of the final rule

sets forth the rules for noncompliant new

construction or alterations in facilities that

were subject to the requirements of this part.Under those provisions, noncomplying new

construction and alterations constructed or

altered after the effective date of the appli-

cable ADA requirements and before March

15, 2012 shall, before March 15, 2012, be

made accessible in accordance with either

the 1991 Standards or the 2010 Standards.

Noncomplying new construction and altera-

tions constructed or altered after the effec-

tive date of the applicable ADA requirements

and before March 15, 2012, shall, on or

after March 15, 2012, be made accessible

in accordance with the 2010 Standards.

Section 36.406(b) Application

of Standards to Fixed Elements

The final rule contains a new Sec.

36.406(b) that clarifies that the require-ments established by this section, includ-

ing those contained in the 2004 ADAAG,

prescribe the requirements necessary to

ensure that fixed or built-in elements in new

or altered facilities are accessible to indi-

viduals with disabilities. Once the construc-

tion or alteration of a facility has beencompleted, all other aspects of programs,

services, and activities conducted in that

facility are subject to the operational require-

ments established elsewhere in this final

rule. Although the Department has often

chosen to use the requirements of the

1991 Standards as a guide to determin-

ing when and how to make equipment

and furnishings accessible, those cover-

age determinations fall within the discre-tionary authority of the Department.

The Department is also clarifying that

the advisory notes, appendix notes, and

figures that accompany the 1991 and

2010 Standards do not establish sepa-

rately enforceable requirements unless

otherwise specified in the text of the stan-

dards. This clarification has been made to

address concerns expressed by ANPRM

commenters who mistakenly believed that

the advisory notes in the 2004 ADAAG

established requirements beyond those

established in the text of the guidelines

(e.g., Advisory 504.4 suggests, but does

not require, that covered entities provide

visual contrast on stair tread nosings to

make them more visible to individuals with

low vision). The Department received nocomments on this provision in the NPRM.






Section 36.406(c) Places of Lodging

In the NPRM, the Department proposeda new definition for public accommodations

that are “places of lodging’’ and a new Sec.

36.406(c) to clarify the scope of coverage

for places of public accommodation that

meet this definition. For many years the

Department has received inquiries from

members of the public seeking clarification

of ADA coverage of rental accommoda-

tions in timeshares, condominium hotels,

and mixed-use and corporate hotel facilities

that operate as places of public accom-

modation (as that term is now defined in

Sec. 36.104). These facilities, which have

attributes of both residential dwellings and

transient lodging facilities, have become

increasingly popular since the ADA’s enact-

ment in 1990 and make up the majority of

new hotel construction in some vacation

destinations. The hybrid residential andlodging characteristics of these new types

of facilities, as well as their ownership char-

acteristics, complicate determinations of

ADA coverage, prompting questions from

both industry and individuals with disabili-

ties. While the Department has interpreted

the ADA to encompass these hotel-like

facilities when they are used to provide

transient lodging, the regulation previously

has specifically not addressed them. In theNPRM, the Department proposed a new

Sec. 36.406(c), entitled “Places of Lodging,’’

which was intended to clarify that places

of lodging, including certain timeshares,

condominium hotels, and mixed-use and

corporate hotel facilities, shall comply with

the provisions of the proposed standards,including, but not limited to, the require-

ments for transient lodging in sections

224 and 806 of the 2004 ADAAG.

The Department’s NPRM sought public

input on this proposal. The Department

received a substantial number of comments

on these issues from industry representa-

tives, advocates for persons with disabilities,

and individuals. A significant focus of thesecomments was on how the Department

should define and regulate vacation rental

units in timeshares, vacation communi-

ties, and condo-hotels where the units are

owned and controlled by individual owners

and rented out some portion of time to the

public, as compared to traditional hotels

and motels that are owned, controlled,

and rented to the public by one entity.

Scoping and technical requirements

applicable to “places of lodging.’’ In the

NPRM, the Department asked for public

comment on its proposal in Sec. 36.406(c)

to apply to places of lodging the scoping

and technical requirements for transient

lodging, rather than the scoping and techni-

cal requirements for residential dwelling

units.

Commenters generally agreed that the

transient lodging requirements should apply

to places of lodging. Several commenters






stated that the determination as to which

requirements apply should be made

based on the intention for use at the timeof design and construction. According to

these commenters, if units are intended for

transient rentals, then the transient lodg-

ing standards should apply, and if they

are intended to be used for residential

purposes, the residential standards should

apply. Some commenters agreed with the

application of transient lodging standards to

places of lodging in general, but disagreed

about the characterization of certain typesof facilities as covered places of lodging.

The Department agrees that the

scoping and technical standards appli-

cable to transient lodging should apply

to facilities that contain units that meet

the definition of “places of lodging.’’

Scoping for timeshare or condominiumhotels. In the NPRM, the Department

sought comment on the appropriate basis

for determining scoping for a timeshare or

condominium-hotel. A number of comment-

ers indicated that scoping should be based

on the usage of the facility. Only those

units used for short-term stays should be

counted for application of the transient

lodging standards, while units sold as

residential properties should be treatedas residential units not subject to the

ADA. One commenter stated that scoping

should be based on the maximum number

of sleeping units available for public

rental. Another commenter pointed out

that unlike traditional hotels and motels,

the number of units available for rentalin a facility or development containing

individually owned units is not fixed over

time. Owners have the right to partici-

pate in a public rental program some, all,

or none of the time, and individual owner

participation changes from year to year.

The Department believes that the deter-

mination for scoping should be based on

the number of units in the project that aredesigned and constructed with the inten-

tion that their owners may participate in

a transient lodging rental program. The

Department cautions that it is not the

number of owners that actually exercise

their right to participate in the program

that determines the scoping. Rather it

is the units that could be placed into an

on-site or off-site transient lodging rentalprogram. In the final rule, the Department

has added a provision to Sec. 36.406(c)

(3), which states that units intended to be

used exclusively for residential purposes

that are contained in facilities that also meet

the definition of place of lodging are not

covered by the transient lodging standards.

Title III of the ADA does not apply to units

designed and constructed with the intention

that they be rented or sold as exclusivelyresidential units. Such units are covered

by the Fair Housing Act (FHAct), which

contains requirements for certain features

of accessible and adaptable design both






for units and for public and common use

areas. All units designed and constructed

with the intention that they may be usedfor both residential and transient lodging

purposes are covered by the ADA and must

be counted for determining the required

number of units that must meet the transient

lodging standards in the 2010 Standards.

Public use and common use areas in facili-

ties containing units subject to the ADA also

must meet the 2010 Standards. In some

developments, units that may serve as resi-

dential units some of the time and rentalunits some of the time will have to meet

both the FHAct and the ADA requirements.

For example, all of the units in a vaca-

tion condominium facility whose owners

choose to rent to the public when they are

not using the units themselves would be

counted for the purposes of determining

the appropriate number of units that must

comply with the 2010 Standards. In a newlyconstructed condominium that has three

floors with units dedicated to be sold solely

as residential housing and three floors with

units that may be used as residences or

hotel units, only the units on the three latter

floors would be counted for applying the

2010 Standards. In a newly constructed

timeshare development containing 100

units, all of which may be made available

to the public through an exchange or rentalprogram, all 100 units would be counted for

purposes of applying the 2010 Standards.

One commenter also asked the

Department for clarification of how to count

individually owned “lock-off units.’’ Lock-offunits are units that are multi-bedroom but

can be “locked off’’ into two separate units,

each having individual external access. This

commenter requested that the Department

state in the final rule that individually owned

lock-off units do not constitute multiple guest

rooms for purposes of calculating compli-

ance with the scoping requirements for

accessible units, since for the most part the

lock-off units are used as part of a largeraccessible unit, and portions of a unit not

locked off would constitute both an acces-

sible one-bedroom unit or an accessible

two-bedroom unit with the lock-off unit.

It is the Department’s view that lock-

off units that are individually owned that

can be temporarily converted into two

units do not constitute two separate guestrooms for purposes of calculating compli-

ance with the scoping requirements.

One commenter asked the Department

how developers should scope units where

buildings are constructed in phases over a

span of years, recommending that the scop-

ing be based on the total number of units

expected to be constructed at the project

and not on a building-by-building basis or ona phase-by-phase basis. The Department

does not think scoping should be based on

planned number of units, which may or may

not be actually constructed over a period






of years. However, the Department recog-

nizes that resort developments may contain

buildings and facilities that are of all sizesfrom single-unit cottages to facilities with

hundreds of units. The Department believes

it would be appropriate to allow design-

ers, builders, and developers to aggregate

the units in facilities with 50 or fewer units

that are subject to a single permit applica-

tion and that are on a common site or that

are constructed at the same time for the

purposes of applying the scoping require-

ments in table 224.2. Facilities with morethan 50 units should be scoped individually

in accordance with the table. The regula-

tion has been revised to reflect this appli-

cation of the scoping requirements.

One commenter also asked the

Department to use the title III regulation

to declare that timeshares subject to the

transient lodging standards are exempt

from the design and construction require-

ments of the FHAct. The coverage of the

FHAct is set by Congress and interpreted

by regulations issued by the Department

of Housing and Urban Development. The

Department has no authority to exempt

anyone from coverage of the FHAct.

Application of ADA to places of lodg-

ing that contain individually owned units.The Department believes that regardless

of ownership structure for individual units,

rental programs (whether they are on- or

off-site) that make transient lodging guest

rooms available to the public must comply

with the general nondiscrimination require-

ments of the ADA. In addition, as providedin Sec. 36.406(c), newly constructed facili-

ties that contain accommodations intended

to be used for transient lodging purposes

must comply with the 2010 Standards.

In the NPRM, the Department asked for

public comment on several issues related to

ensuring the availability of accessible units

in a rental program operated by a place of

lodging. The Department sought input onhow it could address a situation in which

a new or converted facility constructs the

required number of accessible units, but the

owners of those units choose not to partici-

pate in the rental program; whether the facil-

ity has an obligation to encourage or require

owners of accessible units to participate in

the rental program; and whether the facility

developer, the condominium association, or

the hotel operator has an obligation to retain

ownership or control over a certain number

of accessible units to avoid this problem.

In the NPRM, the Department sought

public input on how to regulate scoping for

a timeshare or condominium-rental facility

that decides, after the sale of units to indi-

vidual owners, to begin a rental program

that qualifies the facility as a place of lodg-ing, and how the condominium associa-

tion, operator, or developer should deter-

mine which units to make accessible.






A number of commenters expressed

concerns about the ability of the Department

to require owners of accessible unitsto participate in the rental program, to

require developers, condo associations, or

homeowners associations to retain owner-

ship of accessible units, and to impose

accessibility requirements on individual

owners who choose to place inaccessible

units into a rental program after purchase.

These commenters stated that individuals

who purchase accessible vacation units in

condominiums, individual vacation homes,and timeshares have ownership rights in

their units and may choose lawfully to make

their units available to the public some, all,

or none of the time. Commenters advised

the Department that the Securities and

Exchange Commission takes the position

that if condominium units are offered in

connection with participation in a required

rental program for any part of the year,

require the use of an exclusive rental agent,

or impose conditions otherwise restricting

the occupancy or rental of the unit, then

that offering will be viewed as an offering

of securities in the form of an investment

(rather than a real estate offering). SEC

Release No. 33-5347, Guidelines as to the

Applicability of the Federal Securities Laws

to Offers and Sales of Condominiums or

Units in a Real Estate Development (Jan.4, 1973). Consequently, most condominium

developers do not impose such restric-

tions at the time of sale. Moreover, owners

who choose to rent their units as a short-

term vacation rental can select any rental

or management company to lease and

manage their unit, or they may rent themout on their own. They also may choose

never to lease those units. Thus, there are

no guarantees that at any particular time,

accessible units will be available for rental

by the public. According to this commenter,

providing incentives for owners of acces-

sible units to place their units in the rental

program will not work, because it does

not guarantee the availability of the requi-

site number of rooms dispersed acrossthe development, and there is not any

reasonable, identifiable source of funds

to cover the costs of such incentives.

A number of commenters also indicated

that it potentially is discriminatory as well

as economically infeasible to require that

a developer hold back the accessible

units so that the units can be maintained

in the rental program year-round. One

commenter pointed out that if a developer

did not sell the accessible condominiums

or timeshares in the building inventory, the

developer would be subject to a potential

ADA or FHAct complaint because persons

with disabilities who wanted to buy acces-

sible units rather than rent them each year

would not have the option to purchase

them. In addition, if a developer heldback accessible units, the cost of those

units would have to be spread across all

the buyers of the inaccessible units, and

in many cases would make the project






financially infeasible. This would be espe-

cially true for smaller projects. Finally, this

commenter argued that requiring units tobe part of the common elements that are

owned by all of the individual unit owners

is infeasible because the common owner-

ship would result in pooled rental income,

which would transform the owners into

participants in a rental pool, and thus turn

the sale of the condominiums into the sale

of securities under SEC Release 33-5347.

Several commenters noted that requir-ing the operator of the rental program to

own the accessible units is not feasible

either because the operator of the rental

program would have to have the funds to

invest in the purchase of all of the acces-

sible units, and it would not have a means

of recouping its investment. One commenter

stated that in Texas, it is illegal for on-site

rental programs to own condominium units.

Another commenter noted that such a

requirement might lead to the loss of on-site

rental programs, leaving owners to use indi-

vidual third-party brokers, or rent the units

privately. One commenter acknowledged

that individual owners cannot be required

to place their units in a rental pool simply to

offer an accessible unit to the public, since

the owners may be purchasing units for their

own use. However, this commenter recom-mended that owners who choose to place

their units in a rental pool be required to

contribute to a fund that would be used to

renovate units that are placed in the rental

pool to increase the availability of accessible

units. One commenter argued that the legal

entity running the place of lodging has anobligation to retain control over the required

number of accessible units to ensure that

they are available in accordance with title III.

A number of commenters also argued

that the Department has no legal author-

ity to require individual owners to engage

in barrier removal where an existing

development adds a rental program.

One commenter stated that Texas lawprohibits the operator of on-site rental

program from demanding that alterations

be made to a particular unit. In addition,

under Texas law, condominium declara-

tions may not require some units and not

others to make changes, because that

would lead to unequal treatment of units

and owners, which is not permissible.

One commenter stated that since it

was not possible for operators of rental

programs offering privately owned condo-

miniums to comply with accessible scop-

ing, the Department should create exemp-

tions from the accessible scoping, espe-

cially for existing facilities. In addition, this

commenter stated that if an operator of

an on-site rental program were to require

renovations as a condition of participa-tion in the rental program, unit owners

might just rent their units through a differ-

ent broker or on their own, in which case

such requirements would not apply.






A number of commenters argued that

if a development decides to create a

rental program, it must provide accessibleunits. Otherwise the development would

have to ensure that units are retrofitted. A

commenter argued that if an existing build-

ing is being converted, the Department

should require that if alterations of the units

are performed by an owner or developer

prior to sale of the units, then the altera-

tions requirements should apply, in order

to ensure that there are some accessible

units in the rental pool. This commenterstated that because of the proliferation

of these type of developments in Hawaii,

mandatory alteration is the only way to

guarantee the availability of accessible

units in the long run. In this commenter’s

view, since conversions almost always

require makeover of existing buildings,

this will not lead to a significant expense.

The Department agrees with the

commenters that it would not be feasible

to require developers to hold back or

purchase accessible units for the purposes

of making them available to the public in

a transient lodging rental program, nor

would it be feasible to require individual

owners of accessible units to participate

in transient lodging rental programs.

The Department recognizes that places

of lodging are developed and financed

under myriad ownership and management

structures and agrees that there will be

circumstances where there are legal barri-

ers to requiring compliance with either the

alterations requirements or the requirementsrelated to barrier removal. The Department

has added an exception to Sec. 36.406(c),

providing that in existing facilities that

meet the definition of places of lodging,

where the guest rooms are not owned or

substantially controlled by the entity that

owns, leases, or operates the overall facil-

ity and the physical features of the guest

room interiors are controlled by their indi-

vidual owners, the units are not subject tothe alterations requirement, even where

the owner rents the unit out to the public

through a transient lodging rental program.

In addition, the Department has added an

exception to the barrier removal require-

ments at Sec. 36.304(g) providing that in

existing facilities that meet the definition of

places of lodging, where the guest rooms

are not owned or substantially controlled

by the entity that owns, leases, or oper-

ates the overall facility and the physical

features of the guest room interiors are

controlled by their individual owners, the

units are not subject to the barrier removal

requirement. The Department notes,

however, that there are legal relation-

ships for some timeshares and coopera-

tives where the ownership interests do not

convey control over the physical featuresof units. In those cases, it may be the case

that the facility has an obligation to meet

the alterations or barrier removal require-

ments or to maintain accessible features.






Section 36.406(d) Social Service

Center Establishments


new Sec. 36.406(d) requiring group homes,

halfway houses, shelters, or similar social


temporary sleeping accommodations or

residential dwelling units to comply with the

provisions of the 2004 ADAAG that apply to

residential facilities, including, but not limited

to, the provisions in sections 233 and 809.

The NPRM explained that this proposal

was based on two important changes in the

2004 ADAAG. First, for the first time, resi-

dential dwelling units are explicitly covered

in the 2004 ADAAG in section 233. Second,

the 2004 ADAAG eliminates the language

contained in the 1991 Standards address-

ing scoping and technical requirements

for homeless shelters, group homes, andsimilar social service center establish-

ments. Currently, such establishments are

covered in section 9.5 of the transient lodg-

ing section of the 1991 Standards. The

deletion of section 9.5 creates an ambigu-

ity of coverage that must be addressed.

The NPRM explained the Department’s

belief that transferring coverage of social

service center establishments from the tran-sient lodging standards to the residential

facilities standards would alleviate conflicting

requirements for social service providers.

The Department believes that a substantial

percentage of social service providers are

recipients of Federal financial assistancefrom the Department of Housing and Urban

Development (HUD). The Department of

Health and Human Services (HHS) also

provides financial assistance for the opera-

tion of shelters through the Administration

for Children and Families programs. As

such, they are covered both by the ADA and

section 504. UFAS is currently the design

standard for new construction and altera-

tions for entities subject to section 504.The two design standards for accessibility-

-the 1991 Standards and UFAS--have

confronted many social service providers

with separate, and sometimes conflicting,

requirements for design and construction

of facilities. To resolve these conflicts, the

residential facilities standards in the 2004

ADAAG have been coordinated with the

section 504 requirements. The transientlodging standards, however, are not simi-

larly coordinated. The deletion of section

9.5 of the 1991 Standards from the 2004

ADAAG presented two options: (1) Require

coverage under the transient lodging stan-

dards, and subject such facilities to sepa-

rate, conflicting requirements for design and

construction; or (2) require coverage under

the residential facilities standards, which

would harmonizes the regulatory require-ments under the ADA and section 504. The

Department chose the option that harmo-

nizes the regulatory requirements: coverage

under the residential facilities standards.






In the NPRM, the Department expressed

concern that the residential facilities stan-

dards do not include a requirement forclear floor space next to beds similar to

the requirement in the transient lodging

standards; as a result, the Department

proposed adding a provision that would

require certain social service center estab-

lishments that provide sleeping rooms

with more than 25 beds to ensure that a

minimum of 5 percent of the beds have

clear floor space in accordance with

section 806.2.3 of the 2004 ADAAG.

The Department requested informa-

tion from providers who operate homeless

shelters, transient group homes, halfway

houses, and other social service center

establishments, and from the clients of

these facilities who would be affected

by this proposed change. In the NPRM,

the Department asked to what extentconflicts between the ADA and section

504 have affected these facilities and

what the effect would be of applying the

residential dwelling unit requirements to

these facilities, rather than the require-

ments for transient lodging guest rooms.

Many of the commenters supported

applying the residential facilities require-

ments to social service center establish-ments stating that even though the residen-

tial facilities requirements are less demand-

ing, in some instances, the existence of

one clear standard will result in an overall

increased level of accessibility by elimi-

nating the confusion and inaction that are

sometimes caused by the current existenceof multiple requirements. One commenter

stated that the residential facilities guide-

lines were more appropriate because indi-

viduals housed in social service center

establishments typically stay for a prolonged

period of time, and guests of a transient

lodging facility typically are not housed to

participate in a program or receive services.

One commenter opposed to the

proposed section argued for the applica-

tion of the transient lodging standards to

all social service center establishments

except those that were “intended as a

person’s place of abode,’’ referencing

the Department’s question related to the

definition of place of lodging in the title

III NPRM. A second commenter stated

that the use of transient lodging guide-lines would lead to greater accessibility.

The Department continues to be

concerned about alleviating the challenges

for social service providers that are also

subject to section 504 and that would likely

be subject to conflicting requirements if the

transient lodging standard were applied.

Thus, the Department has retained the

requirement that social service centerestablishments comply with the residential

dwelling standards. The Department did

not receive comments regarding adding a

requirement for bathing options, such as






a roll-in shower, in social service center

establishments operated by public accom-

modations. The Department did, however,receive comments in support of adding

such a requirement regarding public entities

under title II. The Department believes that

social service center establishments that

provide emergency shelter to large transient

populations should be able to provide bath-

ing facilities that are accessible to persons

with mobility disabilities who need roll-in

showers. Because of the transient nature

of the population of these large shelters, itwill not be feasible to modify bathing facili-

ties in a timely manner when faced with a

need to provide a roll-in shower with a

seat when requested by an overnight visi-

tor. As a result, the Department has added

a requirement that social service center

establishments with sleeping accommo-

dations for more than 50 individuals must

provide at least one roll-in shower with aseat that complies with the relevant provi-

sions of section 608 of the 2010 Standards.

Transfer-type showers are not permitted in

lieu of a roll-in shower with a seat, and the

exceptions in sections 608.3 and 608.4 for

residential dwelling units are not permit-

ted. When separate shower facilities are

provided for men and for women, at least

one roll-in shower must be provided for each

group. This supplemental requirement to theresidential facilities standards is in addition

to the supplemental requirement that was

proposed in the NPRM for clear floor space

in sleeping rooms with more than 25 beds.

The Department also notes that while

dwelling units at some social service

center establishments are also subject toFHAct design and construction require-

ments that require certain features of

adaptable and accessible design, FHAct

units do not provide the same level of

accessibility that is required for residen-

tial facilities under the 2010 Standards.

The FHAct requirements, where also

applicable, should not be considered a

substitute for the 2010 Standards. Rather,

the 2010 Standards must be followed inaddition to the FHAct requirements.

The Department also notes that while in

the NPRM the Department used the term

“social service establishment,’’ the final

rule uses the term “ social service center

establishment.’’ The Department has made

this editorial change so that the final rule

is consistent with the terminology used inthe ADA. See 42 U.S.C. 12181(7)(K).

Section 36.406(e) Housing

at a Place of Education

The Department of Justice and the

Department of Education share responsi-

bility for regulation and enforcement of the

ADA in postsecondary educational settings,

including architectural features. Housingtypes in educational settings range from

traditional residence halls and dormito-

ries to apartment or townhouse-style resi-

dences. In addition to title III of the ADA,






universities and schools that are recipients

of Federal financial assistance also are

subject to section 504, which contains itsown accessibility requirements currently

through the application of UFAS. Residential

housing, including housing in an educa-

tional setting, is also covered by the FHAct,

which requires newly constructed multifam-

ily housing to include certain features of

accessible and adaptable design. Covered

entities subject to the ADA must always

be aware of, and comply with, any other

Federal statutes or regulations that governthe operation of residential properties.

Although the 1991 Standards mention

dormitories as a form of transient lodg-

ing, they do not specifically address how

the ADA applies to dormitories and other

types of residential housing provided in an

educational setting. The 1991 Standards

also do not contain any specific provisionsfor residential facilities, allowing covered

entities to elect to follow the residential

standards contained in UFAS. Although

the 2004 ADAAG contains provisions for

both residential facilities and transient lodg-

ing, the guidelines do not indicate which

requirements apply to housing provided

in an educational setting, leaving it to the

adopting agencies to make that choice.

After evaluating both sets of standards, theDepartment concluded that the benefits of

applying the transient lodging standards

outweighed the benefits of applying the resi-

dential facilities standards. Consequently,

in the NPRM, the Department proposed

a new Sec. 36.406(e) that provided that

residence halls or dormitories operated byor on behalf of places of education shall

comply with the provisions of the proposed

standards for transient lodging, includ-

ing, but not limited to, the provisions in

sections 224 and 806 of the 2004 ADAAG.

Private universities and schools covered

by title III as public accommodations are

required to make their programs and activi-

ties accessible to persons with disabilities.The housing facilities that they provide

have varied characteristics. College and

university housing facilities typically provide

housing for up to one academic year, but

may be closed during school vacation peri-

ods. In the summer, they often are used

for short-term stays of one to three days,

a week, or several months. Graduate and

faculty housing often is provided year-round

in the form of apartments, which may serve

individuals or families with children. These

housing facilities are diverse in their layout.

Some are double-occupancy rooms with a

shared toilet and bathing room, which may

be inside or outside the unit. Others may

contain cluster, suite, or group arrange-

ments where several rooms are located

inside a defined unit with bathing, kitchen,

and similar common facilities. In somecases, these suites are indistinguishable

in features from traditional apartments.

Universities may build their own hous-

ing facilities or enter into agreements with






private developers to build, own, or lease

housing to the educational institution or

to its students. Academic housing may belocated on the campus of the university or

may be located in nearby neighborhoods.

Throughout the school year and the

summer, academic housing can become

program areas in which small groups meet,

receptions and educational sessions are

held, and social activities occur. The abil-

ity to move between rooms--both acces-

sible rooms and standard rooms--in orderto socialize, to study, and to use all public

use and common use areas is an essential

part of having access to these educational

programs and activities. Academic housing

also is used for short-term transient educa-

tional programs during the time students are

not in regular residence and may be rented

out to transient visitors in a manner similar

to a hotel for special university functions.

The Department was concerned that

applying the new construction requirements

for residential facilities to educational hous-

ing facilities could hinder access to educa-

tional programs for students with disabilities.

Elevators generally are not required under

the 2004 ADAAG residential facilities stan-

dards unless they are needed to provide

an accessible route from accessible unitsto public use and common use areas, while

under the 2004 ADAAG as it applies to other

types of facilities, multistory private facilities

must have elevators unless they meet very

specific exceptions. In addition, the residen-

tial facilities standards do not require acces-

sible roll-in showers in bathrooms, while thetransient lodging requirements require some

of the accessible units to be served by bath-

rooms with roll-in showers. The transient

lodging standards also require that a greater

number of units have accessible features

for persons with communication disabilities.

The transient lodging standards provide

for installation of the required accessible

features so that they are available immedi-

ately, but the residential facilities standardsallow for certain features of the unit to be

adaptable. For example, only reinforce-

ments for grab bars need to be provided in

residential dwellings, but the actual grab

bars must be installed under the transient

lodging standards. By contrast, the residen-

tial facilities standards do require certain

features that provide greater accessibility

within units, such as usable kitchens andan accessible route throughout the dwell-

ing. The residential facilities standards also

require 5 percent of the units to be acces-

sible to persons with mobility disabilities,

which is a continuation of the same scoping

that is currently required under UFAS and

is therefore applicable to any educational

institution that is covered by section 504.

The transient lodging standards require

a lower percentage of accessible sleep-ing rooms for facilities with large numbers

of rooms than is required by UFAS. For

example, if a dormitory has 150 rooms, the

transient lodging standards would require 7






accessible rooms, while the residential stan-

dards would require 8. In a large dormitory

with 500 rooms, the transient lodging stan-dards would require 13 accessible rooms,

and the residential facilities standards would

require 25. There are other differences

between the two sets of standards, includ-

ing requirements for accessible windows,

alterations, kitchens, an accessible route

throughout a unit, and clear floor space in

bathrooms allowing for a side transfer.

In the NPRM, the Department requestedpublic comment on how to scope educa-

tional housing facilities, and it asked

whether the residential facilities require-

ments or the transient lodging require-

ments in the 2004 ADAAG would be more

appropriate for housing at places of educa-

tion and asked how the different require-

ments would affect the cost of building new

dormitories and other student housing. See73 FR 34508, 34545 (June 17, 2008).

The Department received several

comments on this issue under title III. One

commenter stated that the Department

should adopt the residential facilities stan-

dards for housing at a place of education. In

the commenter’s view, the residential facili-

ties standards are congruent with overlap-

ping requirements imposed by HUD, andthe residential facilities requirements would

ensure dispersion of accessible features

more effectively. This commenter also

argued that while the increased number

of required accessible units for residential

facilities as compared to transient lodg-

ing may increase the cost of constructionor alteration, this cost would be offset by

a reduced need later to adapt rooms if the

demand for accessible rooms exceeds

the supply. The commenter also encour-

aged the Department to impose a visit-

ability (accessible doorways and neces-

sary clear floor space for turning radius)

requirement for both the residential facili-

ties and transient lodging requirements to

allow students with mobility impairments tointeract and socialize in a fully integrated

fashion. Another commenter stated that

while dormitories should be treated like resi-

dences as opposed to transient lodging, the

Department should ensure that “all floors are

accessible,’’ thus ensuring community inte-

gration and visitability. Another commenter

argued that housing at a place of educa-

tion is comparable to residential housing,

and that most of the housing types used

by schools do not have the same ameni-

ties and services or function like transient

lodging and should not be treated as such.

Several commenters focused on the

length of stay at this type of housing and

suggested that if the facilities are subject

to occupancy for greater than 30 days, the

residential standards should apply. Anothercommenter supported the Department’s

adoption of the transient lodging standards,

arguing this will provide greater accessibil-

ity and therefore increase opportunities






for students with disabilities to participate.

One commenter, while supporting the use

of transient lodging standards in this area,argued that the Department also should

develop regulations relating to the usability

of equipment in housing facilities by persons

who are blind or visually impaired. Another

commenter argued that the Department

should not impose the transient lodging

requirements on K-12 schools because the

cost of adding elevators can be prohibitive,

and because there are safety concerns

related to evacuating students in wheel-chairs living on floors above the ground floor

in emergencies causing elevator failures.

The Department has considered the

comments recommending the use of the

residential facilities standards and acknowl-

edges that they require certain features

that are not included in the transient lodg-

ing standards and that should be required

for housing provided at a place of educa-

tion. In addition, the Department notes that

since educational institutions often use

their academic housing facilities as short-

term transient lodging in the summers,

it is important that accessible features

be installed at the outset. It is not realis-

tic to expect that the educational institu-

tion will be able to adapt a unit in a timely

manner in order to provide accessibleaccommodations to someone attending a

one-week program during the summer.

The Department has determined that

the best approach to this type of hous-

ing is to continue to require the appli-cation of transient lodging standards

but, at the same time, to add several

requirements drawn from the resi-

dential facilities standards related

to accessible turning spaces and work

surfaces in kitchens, and the acces-

sible route throughout the unit. This will

ensure the maintenance of the transient

lodging standard requirements related

to access to all floors of the facility, roll-in showers in facilities with more than

50 sleeping rooms, and other important

accessibility features not found in the

residential facilities standards, but also

will ensure usable kitchens and access

to all the rooms in a suite or apartment.

The Department has added a new defini-

tion to Sec. 36.104, “Housing at a Place ofEducation,’’ and has revised Sec. 36.406(e)

to reflect the accessible features that now

will be required in addition to the require-

ments set forth under the transient lodging

standards. The Department also recognizes

that some educational institutions provide

some residential housing on a year-round

basis to graduate students and staff that

is comparable to private rental housing

but contains no facilities for educationalprogramming. Section 36.406(e)(3) exempts

from the transient lodging standards apart-

ments or townhouse facilities that are

provided with a lease on a year-round






basis exclusively to graduate students or

faculty and that do not contain any public

use or common use areas available foreducational programming; instead, such

housing must comply with the require-

ments for residential facilities in sections

233 and 809 of the 2010 Standards.

The regulatory text uses the term

“sleeping room’’ in lieu of the term “guest

room,’’ which is the term used in the tran-

sient lodging standards. The Department

is using this term because it believesthat for the most part, it provides a better

description of the sleeping facilities used

in a place of education than “guest room.’’

The final rule states in Sec. 36.406(e)

that the Department intends the terms to

be used interchangeably in the applica-

tion of the transient lodging standards

to housing at a place of education.

Section 36.406(f) Assembly Areas


Sec. 36.406(f) to supplement the assem-

bly area requirements of the 2004 ADAAG,

which the Department is adopting as

part of the 2010 Standards. The NPRM

proposed at Sec. 36.406(f)(1) to require

wheelchair spaces and companion seat-

ing locations to be dispersed to all levelsof the facility that are served by an acces-

sible route. The Department received no

significant comments on this paragraph

and has decided to adopt the proposed

language with minor modifications.

Section 36.406(f)(1) ensures that there

is greater dispersion of wheelchair spaces

and companion seats throughout stadi-ums, arenas, and grandstands than would

otherwise be required by sections 221 and

802 of the 2004 ADAAG. In some cases,

the accessible route may not be the same

route that other individuals use to reach

their seats. For example, if other patrons

reach their seats on the field by an inac-

cessible route (e.g., by stairs), but there

is an accessible route that complies with

section 206.3 of the 2004 ADAAG that couldbe connected to seats on the field, wheel-

chair spaces and companion seats must

be placed on the field even if that route

is not generally available to the public.

Regulatory language that was included

in the 2004 ADAAG advisory, but that

did not appear in the NPRM, has been

added by the Department in Sec. 36.406(f)(2). Section 36.406(f)(2) now requires an

assembly area that has seating encircl-

ing, in whole or in part, a field of play or

performance area, such as an arena or

stadium, to place wheelchair spaces and

companion seats around the entire facil-

ity. This rule, which is designed to prevent

a public accommodation from placing


on one side of the facility only, is consis-tent with the Department’s enforcement

practices and reflects its interpretation of

section 4.33.3 of the 1991 Standards.







Sec. 36.406(f)(2), which prohibits wheel-

chair spaces and companion seat-ing locations from being “located on (or

obstructed by) temporary platforms * *

*.’’ 73 FR 34508, 34557 (June 17, 2008).

Through its enforcement actions,

the Department discovered that some

venues place wheelchair spaces and

companion seats on temporary platforms

that, when removed, reveal conventional

seating underneath, or cover the wheel-

chair spaces and companion seats withtemporary platforms on top of which they

place risers of conventional seating. These

platforms cover groups of conventional

seats and are used to provide groups of

wheelchair seats and companion seats.

Several commenters requested an

exception to the prohibition of the use of

temporary platforms for public accom-modations that sell most of their tickets

on a season-ticket or other multi-event

basis. Such commenters argued that they

should be able to use temporary platforms

because they know, in advance, that the

patrons sitting in certain areas for the whole

season do not need wheelchair spaces and

companion seats. The Department declines

to adopt such an exception. As it explained

in detail in the NPRM, the Departmentbelieves that permitting the use of movable

platforms that seat four or more wheel-

chair users and their companions have the

potential to reduce the number of available

wheelchair seating spaces below the level

required, thus reducing the opportunities

for persons who need accessible seating to

have the same choice of ticket prices andamenities that are available to other patrons

in the facility. In addition, use of removable

platforms may result in instances where

last minute requests for wheelchair and

companion seating cannot be met because

entire sections of accessible seating will be

lost when a platform is removed. See 73

FR 34508, 34546 (June 17, 2008). Further,

use of temporary platforms allows facilities

to limit persons who need accessible seat-ing to certain seating areas, and to relegate

accessible seating to less desirable loca-

tions. The use of temporary platforms has

the effect of neutralizing dispersion and

other seating requirements (e.g., line of

sight) for wheelchair spaces and companion

seats. Cf. Independent Living Resources v.

Oregon Arena Corp., 1 F. Supp. 2d 1159,

1171 (D. Or. 1998) (holding that while apublic accommodation may “infill’’ wheel-

chair spaces with removable seats when

the wheelchair spaces are not needed to

accommodate individuals with disabilities,

under certain circumstances “[s]uch a prac-

tice might well violate the rule that wheel-

chair spaces must be dispersed throughout

the arena in a manner that is roughly propor-

tionate to the overall distribution of seat-

ing’’). In addition, using temporary platformsto convert unsold wheelchair spaces to

conventional seating undermines the flexibil-

ity facilities need to accommodate second-

ary ticket market exchanges as required

by Sec. 36.302(f)(7) of the final rule.






As the Department explained in the

NPRM, however, this provision was not

designed to prohibit temporary seating thatincreases seating for events (e.g., placing

temporary seating on the floor of a basket-

ball court for a concert). Consequently, the

final rule, at Sec. 36.406(f)(3), has been

amended to clarify that if an entire seat-

ing section is on a temporary platform for

a particular event, then wheelchair spaces

and companion seats may also be in that

seating section. However, adding a tempo-

rary platform to create wheelchair spacesand companion seats that are otherwise

dissimilar from nearby fixed seating and

then simply adding a small number of

additional seats to the platform would not

qualify as an “entire seating section’’ on

the platform. In addition, Sec. 36.406(f)

(3) clarifies that facilities may fill in wheel-

chair spaces with removable seats when

the wheelchair spaces are not neededby persons who use wheelchairs.

The Department has been responsive to

assembly areas’ concerns about reduced

revenues due to unused accessible seating.

Accordingly, the Department has reduced

scoping requirements significantly--by

almost half in large assembly areas--and

determined that allowing assembly areas to

in-fill unsold wheelchair spaces with readilyremovable temporary individual seats appro-

priately balances their economic concerns

with the rights of individuals with disabilities.

See section 221.1 of the 2010 Standards.

For stadium-style movie theaters, in Sec.

36.406(f)(4) of the NPRM the Department

proposed requiring placement of wheelchairseating spaces and companion seats on a

riser or cross-aisle in the stadium section

of the theater that satisfies at least one of

the following criteria: (1) It is located within

the rear 60 percent of the seats provided in

the auditorium; or (2) It is located within the

area of the auditorium where the vertical

viewing angles are between the 40th and

100th percentile of vertical viewing angles

for all seats in that theater as ranked fromthe first row (1st percentile) to the back

row (100th percentile). The vertical view-

ing angle is the angle between a horizontal

line perpendicular to the seated viewer’s

eye to the screen and a line from the seated

viewer’s eye to the top of the screen.

The Department proposed this bright-line

rule for two reasons: (1) the movie theaterindustry petitioned for such a rule; and

(2) the Department has acquired exper-

tise in the design of stadium-style theaters

during its litigation with several major movie

theater chains. See United States. v. AMC

Entertainment, Inc., 232 F. Supp.2d 1092

(C.D. Cal. 2002), rev’d in part, 549 F.3d 760

(9th Cir. 2008); United States v. Cinemark

USA, Inc., 348 F.3d 569 (6th Cir. 2003). Two

industry commenters--at least one of whomotherwise supported this rule--requested

that the Department explicitly state that this

rule does not apply retroactively to existing

theaters. Although this provision on its face






applies to new construction and alterations,

these commenters were concerned that the

rule could be interpreted to apply retroac-tively because of the Department’s state-

ments in the NPRM and ANPRM that this

bright line rule, although newly articulated,

is not a new standard but “merely codifi[es]

longstanding Department requirement[s],’’

73 FR 34508, 34534 (June 17, 2008), and

does not represent a “substantive change

from the existing line-of-sight requirements’’

of section 4.33.3 of the 1991 Standards,

69 FR 58768, 58776 (Sept. 30, 2004).

Although the Department intends for

Sec. 36.406(f)(4) of this rule to apply

prospectively to new construction and

alterations, this rule is not a departure

from, and is consistent with, the line-of-

sight requirements in the 1991 Standards.

The Department has always interpreted

the line-of-sight requirements in the 1991Standards to require viewing angles

provided to patrons who use wheelchairs

to be comparable to those afforded to other

spectators. Section 36.406(f)(4) merely

represents the application of these require-

ments to stadium-style movie theaters.

One commenter from a trade association

sought clarification whether Sec. 36.406(f)

(4) applies to stadium-style theaters withmore than 300 seats, and argued that it

should not since dispersion requirements

apply in those theaters. The Department

declines to limit this rule to stadium-style

theaters with 300 or fewer seats; stadium-

style theaters of all sizes must comply with

this rule. So, for example, stadium-styletheaters that must vertically disperse wheel-

chair spaces and companion seats must

do so within the parameters of this rule.

The NPRM included a provision that

required assembly areas with more

than 5,000 seats to provide at least five

wheelchair spaces with at least three

companion seats for each of those five

wheelchair spaces. The Departmentagrees with commenters who asserted

that group seating is better addressed

through ticketing policies rather than

design and has deleted that provision

from this section of the final rule.

Section 36.406(g)

Medical Care Facilities

In the 1991 title III regulation, there was

no provision addressing the dispersion

of accessible sleeping rooms in medical

care facilities. The Department is aware,

however, of problems that individuals with

disabilities face in receiving full and equal

medical care when accessible sleeping

rooms are not adequately dispersed. When

accessible rooms are not fully dispersed,

a person with a disability is often placed inan accessible room in an area that is not

medically appropriate for his or her condi-

tion, and is thus denied quick access to

staff with expertise in that medical specialty






and specialized equipment. While the

Access Board did not establish specific

design requirements for dispersion in the2004 ADAAG, in response to extensive

comments in support of dispersion it added

an advisory note, Advisory 223.1 General,

encouraging dispersion of accessible

rooms within the facility so that accessible

rooms are more likely to be proximate to

appropriate qualified staff and resources.

In the NPRM, the Department sought

additional comment on the issue, askingwhether it should require medical care

facilities, such as hospitals, to disperse

their accessible sleeping rooms, and if

so, by what method (by specialty area,

floor, or other criteria). All of the comments

the Department received on this issue

supported dispersing accessible sleep-

ing rooms proportionally by specialty area.

These comments from individuals, orga-

nizations, and a building code associa-

tion, argued that it would not be difficult for

hospitals to disperse rooms by specialty

area, given the high level of regulation to

which hospitals are subject and the plan-

ning that hospitals do based on utiliza-

tion trends. Further, comments suggest

that without a requirement, it is unlikely

that hospitals would disperse the rooms.

In addition, concentrating accessiblerooms in one area perpetuates segrega-

tion of individuals with disabilities, which

is counter to the purpose of the ADA.

The Department has decided to require

medical care facilities to disperse their

accessible sleeping rooms in a manner thatis proportionate by type of medical specialty.

This does not require exact mathematical

proportionality, which at times would be

impossible. However, it does require that

medical care facilities disperse their acces-

sible rooms by medical specialty so that

persons with disabilities can, to the extent

practical, stay in an accessible room within

the wing or ward that is appropriate for their

medical needs. The language used in thisrule (“in a manner that is proportionate by

type of medical specialty’’) is more specific

than that used in the NPRM (“in a manner

that enables patients with disabilities to have

access to appropriate specialty services’’)

and adopts the concept of proportionality

proposed by the commenters. Accessible

rooms should be dispersed throughout all

medical specialties, such as obstetrics,orthopedics, pediatrics, and cardiac care.






68



4Analysis and Commentaron the 2010 Standardsfor Accessible Design

69



70



Guidance on the 2010 Standards: Titles II and III - 71

Analysis and Commentary on the 2010 ADAStandards


The following is a discussion of substantive

changes in the scoping and technical

requirements for new construction and

alterations resulting from the adoption of

new ADA Standards for Accessible Design

(2010 Standards) in the nal rules for title II

(28 CFR part 35) and title III (28 CFR part

36) of the Americans with Disabilities Act

(ADA). The full text of the 2010 Standards is

available for review at www.ada.gov.

In the Department’s revised ADA title II

regulation, 28 CFR 35.104 Denitions,

the Department denes the term “2010

Standards” to mean the 2010 ADA Standards

for Accessible Design. The 2010 Standards

consist of the 2004 ADA Accessibility

Guidelines (ADAAG) and the requirements

contained in 28 CFR 35.151.

In the Department’s revised ADA title III

regulation, 28 CFR 36.104 Denitions,

the Department denes the term “2010

Standards” to mean the 2010 ADA Standards

for Accessible Design. The 2010 Standards

consist of the 2004 ADA Accessibility

Guidelines (ADAAG) and the requirements

contained in 28 CFR part 36 subpart D.

This summary addresses selected

substantive changes between the 1991

ADA Standards for Accessible Design

(1991 Standards) codied at 28 CFR part

36, app. A (2009) and the 2010 Standards.

Editorial changes are not discussed. Scoping

and technical requirements are discussed

together, where appropriate, for ease of

understanding the requirements. In addition,

this document addresses selected public

comments received by the Department in

response to its September 2004 Advance

Notice of Proposed Rulemaking (ANPRM)

and its June 2008 Notice of Proposed

Rulemaking (NPRM).

The ANPRM and NPRM issued by the

Department concerning the proposed 2010

Standards stated that comments received

by the Access Board in response to its

development of the ADAAG upon which

the 2010 Standards are based would be

considered in the development of the nal

Standards. Therefore, the Department will

not restate here all of the comments and

responses to them issued by the Access

Board. The Department is supplementing the

Access Board’s comments and responses

with substantive comments and responses

here. Comments and responses addressed

by the Access Board that also were

separately submitted to the Department will

not be restated in their entirety here.

Appendix B to part 36:Analysis and Commentary on the

2010 ADA Standards for Accessible Design



72 - Guidance on the 2010 Standards: Titles II and III



Application and Administration

102 Dimensions for Adults and Children

Section 2.1 of the 1991 Standards stated

that the specications were based upon adult

dimensions and anthropometrics.

The 1991 Standards did not provide specic

requirements for children’s elements or

facilities.

Section 102 of the 2010 Standards statesthat the technical requirements are based

on adult dimensions and anthropometrics.

In addition, technical requirements are also

provided based on children’s dimensions and

anthropometrics for drinking fountains, water

closets and other elements located in toilet

compartments, lavatories and sinks, dining

surfaces, and work surfaces.

103 Equivalent Facilitation

This section acknowledges that nothing

in these requirements prevents the use

of designs, products, or technologies as

alternatives to those prescribed, provided

that the alternatives result in substantially

equivalent or greater accessibility and

usability.

A commenter encouraged the Department

to include a procedure for determining

equivalent facilitation. The Department

believes that the responsibility for determining

and demonstrating equivalent facilitation

properly rests with the covered entity. The

purpose of allowing for equivalent facilitation

is to encourage exibility and innovation

while still ensuring access. The Department

believes that establishing potentially

cumbersome bureaucratic provisions for

reviewing requests for equivalent facilitation

is inappropriate.

104 Conventions

Dimensions. Section 104.1 of the 2010Standards notes that dimensions not stated

as a “maximum” or “minimum” are absolute.

Section 104.1.1 of the 2010 Standards

provides that all dimensions are subject to

conventional industry tolerances except

where the requirement is stated as a range

with specic minimum and maximum

end points. A commenter stated that the

2010 Standards restrict the application of

construction tolerances only to those few

requirements that are expressed as an

absolute dimension.

This is an incorrect interpretation of sections

104.1 and 104.1.1 of the 2010 Standards.

Construction and manufacturing tolerances

apply to absolute dimensions as well as to

dimensions expressed as a maximum or

minimum. When the requirement states aspecied range, such as in section 609.4

where grab bars must be installed between

33 inches and 36 inches above the nished

oor, that range provides an adequate

Section-by-Section Analysis with Public Comments






tolerance. Advisory 104.1.1 gives further

guidance about tolerances.

Section 104.2 of the 2010 Standards

provides that where the required number

of elements or facilities to be provided is

determined by calculations of ratios or

percentages and remainders or fractions

result, the next greater whole number of

such elements or facilities shall be provided.

Where the determination of the required size

or dimension of an element or facility involves

ratios or percentages, rounding down for

values less than one-half is permissible.

A commenter stated that it is customary in

the building code industry to round up rather

than down for values less than one-half.

As noted here, where the 2010 Standards

provide for scoping, any resulting fractional

calculations will be rounded to the next whole

number. The Department is retaining the

portion of section 104.2 that permits rounding

down for values less than one-half where

the determination of the required size or

dimension of an element or facility involves

ratios or percentages. Such practice is

standard with the industry, and is in keeping

with model building codes.

105 Referenced Standards

Section 105 lists the industry requirementsthat are referenced in the 2010 Standards.

This section also claries that where there is

a difference between a provision of the 2010

Standards and the referenced requirements,

the provision of the 2010 Standards applies.

106 Defnitions

Various denitions have been added to the

2010 Standards and some denitions have

been deleted.

One commenter asked that the term public

right-of-way be dened; others asked that

various terms and words dened by the

1991 Standards, but which were eliminated

from the 2010 Standards, plus other words

and terms used in the 2010 Standards, be

dened.

The Department believes that it is not

necessary to add denitions to this text

because section 106.3 of the 2010 Standards

provides that the meanings of terms not

specically dened in the 2010 Standards,

in the Department’s ADA regulations, or in

referenced standards are to be dened by

collegiate dictionaries in the sense that the

context implies. The Department believes that

this provision adequately addresses these

commenters’ concerns.

Scoping andTechnical Requirements

202 Existing Buildings and Facilities

Alterations. Under section 4.1.6(1)(c) of

the 1991 Standards if alterations to singleelements, when considered together, amount

to an alteration of a room or space in a

building or facility, the entire room or space

would have to be made accessible. This

requirement was interpreted to mean that






if a covered entity chose to alter several

elements in a room there would come a point

when so much work had been done that it

would be considered that the entire room or

space would have to be made accessible.

Under section 202.3 of the 2010 Standards

entities can alter as many elements within a

room or space as they like without triggering

a requirement to make the entire room or

space accessible based on the alteration of

individual elements. This does not, however,

change the requirement that if the intent was

to alter the entire room or space, the entire

room or space must be made accessible andcomply with the applicable requirements of

Chapter 2 of the 2010 Standards.

Alterations to Primary Function Areas.

Section 202.4 restates a current requirement

under title III, and therefore represents no

change for title III facilities or for those title II

facilities that have elected to comply with the

1991 Standards. However, under the revised

title II regulation, state and local government

facilities that have previously elected to

comply with the Uniform Federal Accessibility

Standards (UFAS) instead of the 1991

Standards will no longer have that option, and

thus will now be subject to the path of travel

requirement. The path of travel requirement

provides that when a primary function area

of an existing facility is altered, the path

of travel to that area (including restrooms,telephones, and drinking fountains serving

the area) must also be made accessible,

but only to the extent that the cost of doing

so does not exceed twenty percent (20%)

of the cost of the alterations to the primary

function area. The UFAS requirements for a

substantial alteration, though different, may

have covered some of the items that will now

be covered by the path of travel requirement.

Visible Alarms in Alterations to Existing

Facilities. The 1991 Standards, at sections

4.1.3(14) and 4.1.6(1)(b), and sections 202.3

and 215.1 of the 2010 Standards require

that when existing elements and spaces of

a facility are altered, the alterations must

comply with new construction requirements.

Section 215.1 of the 2010 Standards adds

a new exception to the scoping requirementfor visible alarms in existing facilities so that

visible alarms must be installed only when

an existing re alarm system is upgraded

or replaced, or a new re alarm system is

installed.

Some commenters urged the Department

not to include the exception and to make

visible alarms a mandatory requirement for

all spaces, both existing and new. Other

commenters said that the exception will

make the safety of individuals with disabilities

dependent upon the varying age of existing

re alarm systems. Other commenters

suggested that including this requirement,

even with the exception, will result in

signicant cost to building owners and

operators.

The Department believes that the language

of the exception to section 215.1 of the

2010 Standards strikes a reasonable

balance between the interests of individuals

with disabilities and those of the business






community. If undertaken at the time a

system is installed, whether in a new facility

or in a planned system upgrade, the cost of

adding visible alarms is reasonable. Over

time, existing facilities will become fully

accessible to individuals who are deaf or

hard of hearing, and will add minimal costs to

owners and operators.

203 General Exceptions

Limited Access Spaces and Machinery

Spaces. The 1991 Standards, at section

4.1.1, contain an exception that exempts“non-occupiable” spaces that have limited

means of access, such as ladders or very

narrow passageways, and that are visited

only by service personnel for maintenance,

repair, or occasional monitoring of equipment,

from all accessibility requirements. Sections

203.4 and 203.5 of the 2010 Standards

expand this exception by removing the

condition that the exempt spaces be “non-

occupiable,” and by separating the other

conditions into two independent exceptions:

one for spaces with limited means of access,

and the other for machinery spaces. More

spaces are exempted by the exception in the

2010 Standards.

203, 206 and 215 Employee Work Areas

Common Use Circulation Paths inEmployee Work Areas. The 1991

Standards at section 4.1.1(3), and the

2010 Standards at section 203.9, require

employee work areas in new construction

and alterations only to be designed

and constructed so that individuals with

disabilities can approach, enter, and exit

the areas. Section 206.2.8 of the 2010

Standards requires accessible common

use circulation paths within employee work

areas unless they are subject to exceptions

in sections 206.2.8, 403.5, 405.5, and 405.8.

The ADA, 42 U.S.C. 12112 (b)(5)(A) and

(B), requires employers to make reasonable

accommodations in the workplace for

individuals with disabilities, which may

include modications to work areas when

needed. Providing increased access in the

facility at the time of construction or alterationwill simplify the process of providing

reasonable accommodations when they are

needed.

The requirement for accessible common

use circulation paths will not apply to

existing facilities pursuant to the readily

achievable barrier removal requirement.

The Department has consistently taken the

position that barrier removal requirements

do not apply to areas used exclusively by

employees because the purpose of title III is

to ensure that access is provided to clients

and customers. See Appendix B to the 1991

regulation implementing title III,

28 CFR part 36.

Several exceptions to section 206.2.8 of

the 2010 Standards exempt common usecirculation paths in employee work areas

from the requirements of section 402 where

it may be difcult to comply with the technical

requirements for accessible routes due to the

size or function of the area:






• Employee work areas, or portions of

employee work areas, that are less than

300 square feet and are elevated 7 inches

or more above the ground or nish oor,

where elevation is essential to the func-

tion of the space, are exempt.

• Common use circulation paths within

employee work areas that are less than

1,000 square feet and are dened by

permanently installed partitions, counters,

casework, or furnishings are exempt.

Kitchens in quick service restaurants,

cocktail bars, and the employee side ofservice counters are frequently covered

by this exception.


employee work areas that are an integral

component of equipment are exempt.

Common use circulation paths within

large pieces of equipment in factories,

electric power plants, and amusement

rides are covered by this exception.


exterior employee work areas that are

fully exposed to the weather are exempt.

Farms, ranches, and outdoor mainte-

nance facilities are covered by this excep-

tion.

The 2010 Standards in sections 403.5 and405.8 also contain exceptions to the technical

requirements for accessible routes for

circulation paths in employee work areas:

• Machinery and equipment are permitted

to reduce the clear width of common use

circulation paths where the reduction is

essential to the function of the work per-

formed. Machinery and equipment that

must be placed a certain way to work

properly, or for ergonomics or to prevent

workplace injuries are covered by this

exception.

• Handrails are not required on ramps, pro-

vided that they can be added in the future.

Commenters stated that the requirementsset out in the 2010 Standards for accessible

common use circulation paths in employee

work areas are inappropriate, particularly in

commercial kitchens, storerooms, and behind

cocktail bars where wheelchairs would not be

easily accommodated. These commenters

further urged the Department not to adopt

a requirement that circulation paths in

employee work areas be at least 36 inches

wide, including those at emergency exits.

These commenters misunderstand the

scope of the provision. Nothing in the 2010

Standards requires all circulation paths in

non-exempt areas to be accessible. The

Department recognizes that building codes

and re and life safety codes, which are

adopted by all of the states, require primary

circulation paths in facilities, includingemployee work areas, to be at least 36

inches wide for purposes of emergency

egress. Accessible routes also are at least

36 inches wide. Therefore, the Department

anticipates that covered entities will be






able to satisfy the requirement to provide

accessible circulation paths by ensuring that

their required primary circulation paths are

accessible.

Individual employee work stations, such as a

grocery checkout counter or an automobile

service bay designed for use by one person,

do not contain common use circulation paths

and are not required to comply. Other work

areas, such as stockrooms that typically have

narrow pathways between shelves, would

be required to design only one accessible

circulation path into the stockroom. It wouldnot be necessary to make each circulation

path in the room accessible. In alterations

it may be technically infeasible to provide

accessible common use circulation paths in

some employee work areas. For example,

in a stock room of a department store

signicant existing physical constraints, such

as having to move walls to avoid the loss of

space to store inventory, may mean that it

is technically infeasible (see section 106.5

“Dened Terms” of the 2010 Standards)

to make even the primary common use

circulation path in that stock room wide

enough to be accessible. In addition, the

2010 Standards include exceptions for

common use circulation paths in employee

work areas where it may be difcult to

comply with the technical requirements for

accessible routes due to the size or functionof the areas. The Department believes that

these exceptions will provide the exibility

necessary to ensure that this requirement

does not interfere with legitimate business

operations.

Visible Alarms. Section 215.3 of the 2010

Standards provides that where employee

work areas in newly constructed facilities

have audible alarm coverage they are

required to have wiring systems that

are capable of supporting visible alarms

that comply with section 702 of the 2010

Standards. The 1991 Standards, at section

4.1.1(3), require visible alarms to be provided

where audible re alarm systems are

provided, but do not require areas used only

by employees as work areas to be equipped

with accessibility features. As applied to ofce

buildings, the 1991 Standards require visiblealarms to be provided in public and common

use areas such as hallways, conference

rooms, break rooms, and restrooms, where

audible re alarm systems are provided.

Commenters asserted that the requirements

of section 215.3 of the 2010 Standards would

be burdensome to meet. These commenters

also raised concerns that all employee work

areas within existing buildings and facilities

must be equipped with accessibility features.

The commenters’ concerns about section

215.3 of the 2010 Standards represent

a misunderstanding of the requirements

applicable to employee work areas.

Newly constructed buildings and facilities

merely are required to provide wiring so

that visible alarm systems can be added asneeded to accommodate employees who

are deaf or hard of hearing. This is a minimal

requirement without signicant impact.






The other issue in the comments represents

a misunderstanding of the Department’s

existing regulatory requirements. Employee

common use areas in covered facilities

(e.g., locker rooms, break rooms, cafeterias,

toilet rooms, corridors to exits, and other

common use spaces) were required to

be accessible under the 1991 Standards;

areas in which employees actually perform

their jobs are required to enable a person

using a wheelchair or mobility device to

approach, enter, and exit the area. The 2010

Standards require increased access through

the accessible common use circulation pathrequirement, but neither the 1991 Standards

nor the 2010 Standards require employee

work stations to be accessible. Access to

specic employee work stations is governed

by title I of the ADA.

205 and 309 Operable Parts

Section 4.1.3, and more specically

sections 4.1.3(13), 4.27.3, and 4.27.4 of

the 1991 Standards, require operable parts

on accessible elements, along accessible

routes, and in accessible rooms and spaces

to comply with the technical requirements

for operable parts, including height and

operation. The 1991 Standards, at section

4.27.3, contain an exception, “ * * * where the

use of special equipment dictates otherwise

or where electrical and communicationssystems receptacles are not normally

intended for use by building occupants,” from

the technical requirement for the height of

operable parts. Section 205.1 of the 2010

Standards divides this exception into three

exceptions covering operable parts intended

only for use by service or maintenance

personnel, electrical or communication

receptacles serving a dedicated use, and

oor electrical receptacles. Operable parts

covered by these new exceptions are exempt

from all of the technical requirements for

operable parts in section 309. The 2010

Standards also add exceptions that exempt

certain outlets at kitchen counters; heating,

ventilating and air conditioning diffusers;

redundant controls provided for a single

element, other than light switches; and

exercise machines and equipment from allof the technical requirements for operable

parts. Exception 7, in section 205.1 of the

2010 Standards, exempts cleats and other

boat securement devices from the accessible

height requirement. Similarly, section

309.4 of the 2010 Standards exempts gas

pump nozzles, but only from the technical

requirement for activating force.

Reach Ranges. The 1991 Standards set

the maximum height for side reach at 54

inches above the oor. The 2010 Standards,

at section 308.3, lower that maximum height

to 48 inches above the nish oor or ground.

The 2010 Standards also add exceptions, as

discussed above, to the scoping requirement

for operable parts for certain elements that,

among other things, will exempt them from

the reach range requirements in section 308.

The 1991 Standards, at sections 4.1.3,

4.27.3, and 4.2.6, and the 2010 Standards,

at sections 205.1, 228.1, 228.2, 308.3, and

309.3, require operable parts of accessible






elements, along accessible routes, and in

accessible rooms and spaces to be placed

within the forward or side-reach ranges

specied in section 308. The 2010 Standards

also require at least ve percent (5%) of

mailboxes provided in an interior location

and at least one of each type of depository,

vending machine, change machine, and gas

pump to meet the technical requirements for

a forward or a side reach.

Section 4.2.6 of the 1991 Standards species

a maximum 54-inch high side reach and

a minimum 9-inch low side reach for anunobstructed reach depth of 10 inches

maximum. Section 308.3.1 of the 2010

Standards species a maximum 48-inch high

side reach and a minimum 15-inch low side

reach where the element being reached for

is unobstructed. Section 308.3.1, Exception

1, permits an obstruction that is no deeper

than 10 inches between the edge of the clear

oor or ground space and the element that

the individual with a disability is trying to

reach. Changes in the side-reach range for

new construction and alterations in the 2010

Standards will affect a variety of building

elements such as light switches, electrical

outlets, thermostats, re alarm pull stations,

card readers, and keypads.

Commenters were divided in their views

about the changes to the unobstructed side-reach range. Disability advocacy groups and

others, including individuals of short stature,

supported the modications to the proposed

reach range requirements. Other commenters

stated that the new reach range requirements

will be burdensome for small businesses to

comply with. These comments argued that

the new reach range requirements restrict

design options, especially in residential

housing.

The Department continues to believe that

data submitted by advocacy groups and

others provides compelling evidence that

lowered reach range requirements will

better serve signicantly greater numbers

of individuals with disabilities, including

individuals of short stature, persons with

limited upper body strength, and otherswith limited use of their arms and ngers.

The change to the side-reach range was

developed by the Access Board over

a prolonged period in which there was

extensive public participation. This process

did not produce any signicant data to

indicate that applying the new unobstructed

side-reach range requirement in new

construction or during alterations would

impose a signicant burden.

206 and Chapter 4 Accessible Routes

Slope. The 2010 Standards provide, at

section 403.3, that the cross slope of walking

surfaces not be steeper than 1:48. The

1991 Standards’ cross slope requirement

was that it not exceed 1:50. A commenter

recommended increasing the cross sloperequirement to allow a maximum of ½ inch

per foot (1:24) to prevent imperfections in

concrete surfaces from ponding water. The

Department continues to believe that the

requirement that a cross slope not be steeper






than 1:48 adequately provides for water

drainage in most situations. The suggested

changes would double the allowable cross

slope and create a signicant impediment

for many wheelchair users and others with a

mobility disability.

Accessible Routes from Site Arrival Points

and Within Sites. The 1991 Standards,

at sections 4.1.2(1) and (2), and the 2010

Standards, at sections 206.2.1 and 206.2.2,

require that at least one accessible route

be provided within the site from site arrival

points to an accessible building entrance andthat at least one accessible route connect

accessible facilities on the same site. The

2010 Standards also add two exceptions

that exempt site arrival points and accessible

facilities within a site from the accessible

route requirements where the only means of

access between them is a vehicular way that

does not provide pedestrian access.

Commenters urged the Department to

eliminate the exception that exempts site

arrival points and accessible facilities from

the accessible route requirements where

the only means of access between them is

a vehicular way not providing pedestrian

access. The Department declines to

accept this recommendation because the

Department believes that its use will be

limited. If it can be reasonably anticipatedthat the route between the site arrival point

and the accessible facilities will be used

by pedestrians, regardless of whether a

pedestrian route is provided, then this

exception will not apply. It will apply only

in the relatively rare situations where the

route between the site arrival point and the

accessible facility dictates vehicular access –

for example, an ofce complex on an isolated

site that has a private access road, or a self-

service storage facility where all users are

expected to drive to their storage units.

Another commenter suggested that the

language of section 406.1 of the 2010

Standards is confusing because it states that

curb ramps on accessible routes shall comply

with 406, 405.2 through 405.5, and 405.10.The 1991 Standards require that curb ramps

be provided wherever an accessible route

crosses a curb.

The Department declines to change this

language because the change is purely

editorial, resulting from the overall changes

in the format of the 2010 Standards. It does

not change the substantive requirement.

In the 2010 Standards all elements on a

required accessible route must be accessible;

therefore, if the accessible route crosses a

curb, a curb ramp must be provided.

Areas of Sport Activity. Section 206.2.2

of the 2010 Standards requires at least

one accessible route to connect accessible

buildings, facilities, elements, and spaces

on the same site. Advisory section 206.2.2adds the explanation that an accessible route

must connect the boundary of each area of

sport activity (e.g., courts and playing elds,

whether indoor or outdoor). Section 206.2.12

of the 2010 Standards further requires that






in court sports the accessible route must

directly connect both sides of the court.

Limited-Use/Limited-Application

Elevators, Destination-Oriented Elevators

and Private Residence Elevators. The

1991 Standards, at section 4.1.3(5), and

the 2010 Standards, at sections 206.2 and

206.6, include exceptions to the scoping

requirement for accessible routes that

exempt certain facilities from connecting

each story with an elevator. If a facility is

exempt from the scoping requirement, but

nonetheless installs an elevator, the 1991Standards require the elevator to comply

with the technical requirements for elevators.

The 2010 Standards add a new exception

that allows a facility that is exempt from

the scoping requirement to install a limited-

use/limited-application (LULA) elevator.

LULA elevators are also permitted in the

1991 Standards and the 2010 Standards

as an alternative to platform lifts. The 2010

Standards also add a new exception that

permits private residence elevators in multi-

story dwelling and transient lodging units.

The 2010 Standards contain technical

requirements for LULA elevators at section

408 and private residence elevators at

section 409.

Section 407.2.1.4 of the 2010 Standards

includes an exception to the technicalrequirements for locating elevator call buttons

for destination-oriented elevators. The

advisory at section 407.2.1.4 describes lobby

controls for destination-oriented elevator

systems. Many elevator manufacturers have

recently developed these new “buttonless”

elevator control systems. These new, more

efcient elevators are usually found in high-

rise buildings that have several elevators.

They require passengers to enter their

destination oor on an entry device, usually

a keypad, in the elevator lobby. The system

then sends the most efcient car available

to take all of the passengers going to the

sixth oor, for example, only to the sixth oor,

without making stops at the third, fourth,

and fth oors on the way to the sixth oor.

The challenge for individuals who are blind

or have low vision is how to know whichelevator car to enter, after they have entered

their destination oor into the keypad.

Commenters requested that the Department

impose a moratorium on the installation of

destination-oriented elevators arguing that

this new technology presents waynding

challenges for persons who are blind or have

low vision.


allows destination-oriented elevators to not

provide call buttons with visible signals to

indicate when each call is registered and

when each call is answered provided that

visible and audible signals, compliant with

407.2.2 of the 2010 Standards, indicating

which elevator car to enter, are provided.

This will require the responding elevator carto automatically provide audible and visible

communication so that the system will always

verbally and visually indicate which elevator

car to enter.






As with any new technology, all users must

have time to become acquainted with how

to use destination-oriented elevators. The

Department will monitor the use of this new

technology and work with the Access Board

so that there is not a decrease in accessibility

as a result of permitting this new technology

to be installed.

Accessible Routes to Tiered Dining Areas

in Sports Facilities. The 1991 Standards, at

sections 4.1.3(1) and 5.4, and section 206.2.5

of the 2010 Standards require an accessible

route to be provided to all dining areas innew construction, including raised or sunken

dining areas. The 2010 Standards add a new

exception for tiered dining areas in sports

facilities. Dining areas in sports facilities

are typically integrated into the seating bowl

and are tiered to provide adequate lines of

sight for individuals with disabilities. The new

exception requires accessible routes to be

provided to at least 25 percent (25%) of the

tiered dining areas in sports facilities. Each

tier must have the same services and the

accessible routes must serve the accessible

seating.

Accessible Routes to Press Boxes. The

1991 Standards, at sections 4.1.1(1) and

4.1.3(1), cover all areas of newly constructed

facilities required to be accessible, and

require an accessible route to connectaccessible entrances with all accessible

spaces and elements within the facility.


requires that all areas of newly designed

and constructed buildings and facilities and

altered portions of existing buildings and

facilities be accessible. Sections 206.2.7(1)

and (2) of the 2010 Standards add two

exceptions that exempt small press boxes

that are located in bleachers with entrances

on only one level, and small press boxes that

are free-standing structures elevated 12 feet

or more above grade, from the accessible

route requirement when the aggregate area

of all press boxes in a sports facility does not

exceed 500 square feet. The Department

anticipates that this change will signicantly

reduce the economic impact on smallersports facilities, such as those associated

with high schools or community colleges.

Public Entrances. The 1991 Standards, at

sections 4.1.3(8) and 4.1.6(1)(h), require at

least fty percent (50%) of public entrances

to be accessible. Additionally, the 1991

Standards require the number of accessible

public entrances to be equivalent to the

number of exits required by applicable

building and re codes. With very few

exceptions, building and re codes require

at least two exits to be provided from spaces

within a building and from the building itself.

Therefore, under the 1991 Standards where

two public entrances are planned in a newly

constructed facility, both entrances are

required to be accessible.

Instead of requiring accessible entrances

based on the number of public entrances

provided or the number of exits required

(whichever is greater), section 206.4.1






of the 2010 Standards requires at least

sixty percent (60%) of public entrances

to be accessible. The revision is intended

to achieve the same result as the 1991

Standards. Thus, under the 2010 Standards

where two public entrances are planned in

a newly constructed facility, both entrances

must be accessible.

Where multiple public entrances are planned

to serve different site arrival points, the

1991 Standards, at section 4.1.2(1), and

section 206.2.1 of the 2010 Standards

require at least one accessible route tobe provided from each type of site arrival

point provided, including accessible parking

spaces, accessible passenger loading zones,

public streets and sidewalks, and public

transportation stops, to an accessible public

entrance that serves the site arrival point.

Commenters representing small businesses

recommended retaining the 1991 requirement

for fty percent (50%) of public entrances

of covered entities to be accessible. These

commenters also raised concerns about the

impact upon existing facilities of the new sixty

percent (60%) requirement.

The Department believes that these

commenters misunderstand the 1991

Standards. As explained above, the

requirements of the 1991 Standardsgenerally require more than fty percent

(50%) of entrances in small facilities to be

accessible. Model codes require that most

buildings have more than one means of

egress. Most buildings have more than

one entrance, and the requirements of the

1991 Standards typically resulted in these

buildings having more than one accessible

entrance. Requiring at least sixty percent

(60%) of public entrances to be accessible

is not expected to result in a substantial

increase in the number of accessible

entrances compared to the requirements

of the 1991 Standards. In some very large

facilities this change may result in fewer

accessible entrances being required by the

2010 Standards. However, the Department

believes that the realities of good commercial

design will result in more accessibleentrances being provided for the convenience

of all users.

The 1991 Standards and the 2010 Standards

also contain exceptions that limit the

number of accessible entrances required

in alterations to existing facilities. When

entrances to an existing facility are altered

and the facility has an accessible entrance,

the entrance being altered is not required

to be accessible, unless a primary function

area also is altered and then an accessible

path of travel must be provided to the primary

function area to the extent that the cost to do

so is not disproportionate to the overall cost

of the alteration.

Alterations to Existing Elevators. When a

single space or element is altered, the 1991Standards, at sections 4.1.6(1)(a) and (b),

require the space or element to be made

accessible. When an element in one elevator

is altered, the 2010 Standards, at section

206.6.1, require the same element to be






altered in all elevators that are programmed

to respond to the same call button as the

altered elevator.

The 2010 Standards, at sections 407.2.1 -

407.4.7.1.2, also contain exceptions to the

technical requirements for elevators when

existing elevators are altered that minimize

the impact of this change.

Commenters expressed concerns about

the requirement that when an element in

one elevator is altered, the 2010 Standards,

at section 206.6.1, will require the sameelement to be altered in all elevators

that are programmed to respond to the

same call button as the altered elevator.

Commenters noted that such a requirement

is burdensome and will result in costly efforts

without signicant benet to individuals with

disabilities.

The Department believes that this

requirement is necessary to ensure that when

an individual with a disability presses a call

button, an accessible elevator will arrive.

Without this requirement, individuals with

disabilities would have to wait unnecessarily

for an accessible elevator to make its way

to them arbitrarily. The Department also

believes that the effort required to meet

this provision is minimal in the majority of

situations because it is typical to upgrade allof the elevators in a bank at the same time.

Accessible Routes in Dwelling Units with

Mobility Features. Sections 4.34.1 and

4.34.2 of the UFAS require the living area,

kitchen and dining area, bedroom, bathroom,

and laundry area, where provided, in covered

dwelling units with mobility features to be on

an accessible route. Where covered dwelling

units have two or more bedrooms, at least

two bedrooms are required to be on an

accessible route.

The 2010 Standards at sections 233.3.1.1,

809.1, 809.2, 809.2.1, and 809.4 will require

all spaces and elements within dwelling units

with mobility features to be on an accessible

route. These changes exempt unnished

attics and unnished basements from theaccessible route requirement. Section

233.3.5 of the 2010 Standards also includes

an exception to the dispersion requirement

that permits accessible single-story dwelling

units to be constructed, where multi-story

dwelling units are one of the types of units

provided.

Location of Accessible Routes. Section

4.3.2(1) of the 1991 Standards requires

accessible routes connecting site arrival

points and accessible building entrances

to coincide with general circulation paths,

to the maximum extent feasible. The 2010

Standards require all accessible routes to

coincide with or be located in the same

general area as general circulation paths.

Additionally, a new provision species that

where a circulation path is interior, therequired accessible route must also be

located in the interior of the facility. The

change affects a limited number of buildings.

Section 206.3 of the 2010 Standards requires

all accessible routes to coincide with or






be located in the same general area as

general circulation paths. Designing newly

constructed interior accessible routes to

coincide with or to be located in the same

area as general circulation paths will not

typically present a difcult design challenge

and is expected to impose limited design

constraints. The change will have no impact

on exterior accessible routes. The 1991

Standards and the 2010 Standards also

require accessible routes to be located in

the interior of the facility where general

circulation paths are located in the interior

of the facility. The revision affects a limitednumber of buildings.

Location of Accessible Routes to Stages.

The 1991 Standards at section 4.33.5 require

an accessible route to connect the accessible

seating and the performing area.


requires the accessible route to directly

connect the seating area and the accessible

seating, stage, and all areas of the stage,

where a circulation path directly connects

the seating area and the stage. Both the

1991 Standards and the 2010 Standards

also require an accessible route to connect

the stage and ancillary areas, such as

dressing rooms, used by performers. The

2010 Standards do not require an additional

accessible route to be provided to the

stage. Rather, the changes specify wherethe accessible route to the stage, which is

required by the 1991 Standards, must be

located.

207 Accessible Means of Egress

General. The 1991 Standards at sections

4.1.3(9); 4.1.6(1)(g); and 4.3.10 establish

scoping and technical requirements for

accessible means of egress. Section

207.1 of the 2010 Standards reference the

International Building Code (IBC) for scoping

and technical requirements for accessible

means of egress.

The 1991 Standards require the same

number of accessible means of egress to be

provided as the number of exits required byapplicable building and re codes. The IBC

requires at least one accessible means of

egress and at least two accessible means

of egress where more than one means of

egress is required by other sections of the

building code. The changes in the 2010

Standards are expected to have minimal

impact since the model re and life safety

codes, which are adopted by all of the states,

contain equivalent requirements with respect

to the number of accessible means of egress.

The 1991 Standards require areas of rescue

assistance or horizontal exits in facilities

with levels above or below the level of exit

discharge. Areas of rescue assistance are

spaces that have direct access to an exit,

stair, or enclosure where individuals who

are unable to use stairs can go to call forassistance and wait for evacuation. The 2010

Standards incorporate the requirements

established by the IBC. The IBC requires an

evacuation elevator designed with standby

power and other safety features that can






be used for emergency evacuation of

individuals with disabilities in facilities with

four or more stories above or below the exit

discharge level, and allows exit stairways

and evacuation elevators to be used as an

accessible means of egress in conjunction

with areas of refuge or horizontal exits.

The change is expected to have minimal

impact since the model re and life safety

codes, adopted by most states, already

contain parallel requirements with respect to

evacuation elevators.

The 1991 Standards exempt facilitiesequipped with a supervised automatic

sprinkler system from providing areas

of rescue assistance, and also exempt

alterations to existing facilities from

providing an accessible means of egress.

The IBC exempts buildings equipped with a

supervised automatic sprinkler system from

certain technical requirements for areas

of refuge, and also exempts alterations to

existing facilities from providing an accessible

means of egress.

The 1991 and 2010 Standards require

signs that provide direction to or information

about functional spaces to meet certain

technical requirements. The 2010 Standards,

at section 216.4, address exit signs. This

section is consistent with the requirements

of the IBC. Signs used for means of egressare covered by this scoping requirement.

The requirements in the 2010 Standards

require tactile signs complying with sections

703.1, 703.2 and 703.5 at doors at exit

passageways, exit discharge, and at exit

stairways. Directional exit signs and signs at

areas of refuge required by section 216.4.3

must have visual characters and features

complying with section 703.5.

Standby Power for Platform Lifts. The

2010 Standards at section 207.2 require

standby power to be provided for platform

lifts that are permitted to serve as part of

an accessible means of egress by the IBC.

The IBC permits platform lifts to serve as

part of an accessible means of egress in

a limited number of places where platform

lifts are allowed in new construction. The1991 Standards, at 4.1.3 (5) Exception 4

(a) through (d), and the 2010 Standards, at

sections 206.7.1 through 206.7.10, similarly

limit the places where platform lifts are

allowed in new construction.


reconsider provisions that would require

standby power to be provided for platform

lifts. Concerns were raised that ensuring

standby power would be too burdensome.

The Department views this issue as a

fundamental life safety issue. Lift users face

the prospect of being trapped on the lift in

the event of a power failure if standby power

is not provided. The lack of standby power

could be life-threatening in situations where

the power failure is associated with a re or

other emergency. The use of a platform liftis generally only one of the options available

to covered entities. Covered entities that

are concerned about the costs associated

with maintaining standby power for a lift may






wish to explore design options that would

incorporate the use of a ramp.

208 and 502 Parking Spaces

General. Where parking spaces are

provided, the 1991 Standards, at sections

4.1.2 (5)(a) and (7) and 7(a), and the 2010

Standards, at section 208.1, require a

specied number of the parking spaces to be

accessible. The 2010 Standards, at section

208, include an exception that exempts

parking spaces used exclusively for buses,

trucks, delivery vehicles, law enforcementvehicles, or for purposes of vehicular

impound, from the scoping requirement for

parking spaces, provided that when these

lots are accessed by the public the lot has an

accessible passenger loading zone.

The 2010 Standards require accessible

parking spaces to be identied by signs

that display the International Symbol of

Accessibility. Section 216.5, Exceptions 1

and 2, of the 2010 Standards exempt certain

accessible parking spaces from this signage

requirement. The rst exception exempts

sites that have four or fewer parking spaces

from the signage requirement. Residential

facilities where parking spaces are assigned

to specic dwelling units are also exempted

from the signage requirement.

Commenters stated that the rst exception,

by allowing a small parking lot with four or

fewer spaces not to post a sign at its one

accessible space, is problematic because it

could allow all drivers to park in accessible

parking spaces. The Department believes

that this exception provides necessary relief

for small business entities that may otherwise

face the prospect of having between

twenty-ve percent (25%) and one hundred

percent (100%) of their limited parking area

unavailable to their customers because they

are reserved for the exclusive use of persons

whose vehicles display accessible tags or

parking placards. The 2010 Standards still

require these businesses to ensure that at

least one of their available parking spaces is

designed to be accessible.

A commenter stated that accessible parking

spaces must be clearly marked. The

Department notes that section 502.6 of the

2010 Standards provides that accessible

parking spaces must be identied by signs

that include the International Symbol of

Accessibility. Also, section 502.3.3 of the

2010 Standards requires that access aisles

be marked so as to discourage parking in

them.

Access Aisle. Section 502.3 of the 2010

Standards requires that an accessible route

adjoin each access aisle serving accessible

parking spaces. The accessible route

connects each access aisle to accessible

entrances.

Commenters questioned why the 2010Standards would permit an accessible

route used by individuals with disabilities to

coincide with the path of moving vehicles.

The Department believes that the 2010

Standards appropriately recognize that not all






parking facilities provide separate pedestrian

routes. Section 502.3 of the 2010 Standards

provides the exibility necessary to permit

designers and others to determine the most

appropriate location of the accessible route

to the accessible entrances. If all pedestrians

using the parking facility are expected to

share the vehicular lanes, then the ADA

permits covered entities to use the vehicular

lanes as part of the accessible route. The

advisory note in section 502.3 of the 2010

Standards, however, calls attention to the

fact that this practice, while permitted, is not

ideal. Accessible parking spaces must belocated on the shortest accessible route of

travel to an accessible entrance. Accessible

parking spaces and the required accessible

route should be located where individuals

with disabilities do not have to cross vehicular

lanes or pass behind parked vehicles to

have access to an accessible entrance.

If it is necessary to cross a vehicular lane

because, for example, local re engine

access requirements prohibit parking

immediately adjacent to a building, then a

marked crossing running perpendicular to

the vehicular route should be included as

part of the accessible route to an accessible

entrance.

Van Accessible Parking Spaces. The

1991 Standards, at sections 4.1.2 (5)

(b), 4.6.3, 4.6.4, and 4.6.5, require onein every eight accessible parking spaces

to be van accessible. Section 208.2.4 of

the 2010 Standards requires one in every

six accessible parking spaces to be van

accessible.

A commenter asked whether automobiles

other than vans may park in van accessible

parking spaces. The 2010 Standards do not

prohibit automobiles other than vans from

using van accessible parking spaces. The

Department does not distinguish between

vehicles that are actual “vans” versus other

vehicles such as trucks, station wagons, sport

utility vehicles, etc. since many vehicles other

than vans may be used by individuals with

disabilities to transport mobility devices.

Commenters’ opinions were divided on this

point. Facility operators and others askedfor a reduction in the number of required

accessible parking spaces, especially the

number of van accessible parking spaces,

because they claimed these spaces often

are not used. Individuals with disabilities,

however, requested an increase in the

scoping requirements for these parking

spaces.

The Department is aware that a strong

difference of opinion exists between those

who use such spaces and those who must

provide or maintain them. Therefore, the

Department did not increase the total number

of accessible spaces required. The only

change was to increase the proportion of

spaces that must be accessible to vans and

other vehicles equipped to transport mobility

devices.

Direct Access Entrances from Parking

Structures. Where levels in a parking

garage have direct connections for

pedestrians to another facility, the 1991






Standards, at section 4.1.3(8)(b)(i), require

at least one of the direct connections to

be accessible. The 2010 Standards, at

section 206.4.2, require all of these direct

connections to be accessible.

209 and 503 Passenger Loading Zones

and Bus Stops

Passenger Loading Zones at Medical Care

and Long-Term Care Facilities. Sections

6.1 and 6.2 of the 1991 Standards and

section 209.3 of the 2010 Standards require

medical care and long-term care facilities,where the period of stay exceeds 24 hours,

to provide at least one accessible passenger

loading zone at an accessible entrance. The

1991 Standards also require a canopy or roof

overhang at this passenger loading zone.

The 2010 Standards do not require a canopy

or roof overhang.


reinstate the requirement for a canopy or roof

overhang at accessible passenger loading

zones at medical care and long-term care

facilities. While the Department recognizes

that a canopy or roof overhang may afford

useful protection from inclement weather

conditions to everyone using a facility, it is

not clear that the absence of such protection

would impede access by individuals with

disabilities. Therefore, the Departmentdeclined to reinstate that requirement.

Passenger Loading Zones. Where

passenger loading zones are provided, the

1991 Standards, at sections 4.1.2(5) and

4.6.6, require at least one passenger loading

zone to be accessible. Sections 209.2.1 and

503 of the 2010 Standards, require facilities

such as airport passenger terminals that have

long, continuous passenger loading zones

to provide one accessible passenger loading

zone in every continuous 100 linear feet of

loading zone space. The 1991 Standards and

the 2010 Standards both include technical

requirements for the vehicle pull-up space

(96 inches wide minimum and 20 feet long

minimum). Accessible passenger loading

zones must have an access aisle that is 60

inches wide minimum and extends the fulllength of the vehicle pull-up space. The 1991

Standards permit the access aisle to be on

the same level as the vehicle pull-up space,

or on the sidewalk. The 2010 Standards

require the access aisle to be on the same

level as the vehicle pull-up space and to be

marked so as to discourage parking in the

access aisle.

Commenters expressed concern that certain

covered entities, particularly airports, cannot

accommodate the requirements of the 2010

Standards to provide passenger loading

zones, and urged a revision that would

require one accessible passenger loading

zone located in reasonable proximity to each

building entrance served by the curb.

Commenters raised a variety of issues aboutthe requirements at section 503 of the 2010

Standards stating that the requirements for

an access aisle, width, length, and marking

of passenger loading zones are not clear,

do not fully meet the needs of individuals






with disabilities, may run afoul of state or

local requirements, or may not be needed

because many passenger loading zones are

typically staffed by doormen or valet parkers.

The wide range of opinions expressed in

these comments indicates that this provision

is controversial. However, none of these

comments provided sufcient data to enable

the Department to determine that the

requirement is not appropriate.

Valet Parking and Mechanical Access

Parking Garages. The 1991 Standards, at

sections 4.1.2(5)(a) and (e), and sections208.2, 209.4, and 209.5 of the 2010

Standards require parking facilities that

provide valet parking services to have an

accessible passenger loading zone. The

2010 Standards extend this requirement to

mechanical access parking garages. The

1991 Standards contained an exception

that exempted valet parking facilities from

providing accessible parking spaces. The

2010 Standards eliminate this exception. The

reason for not retaining the provision is that

valet parking is a service, not a facility type.

Commenters questioned why the exception

for valet parking facilities from providing

accessible parking spaces was eliminated.

The provision was eliminated because valet

parkers may not have the skills necessary

to drive a vehicle that is equipped to beaccessible, including use of hand controls, or

when a seat is not present to accommodate

a driver using a wheelchair. In that case,

permitting the individual with a disability

to self-park may be a required reasonable

modication of policy by a covered entity.

210 and 504 Stairways

The 1991 Standards require stairs to be

accessible only when they provide access to

oor levels not otherwise connected by an

accessible route (e.g., where the accessible

route is provided by an elevator, lift, or ramp).

The 2010 Standards, at sections 210.1 and

504, require all newly constructed stairs that

are part of a means of egress to comply

with the requirements for accessible stairs,which include requirements for accessible

treads, risers, and handrails. In existing

facilities, where oor levels are connected

by an accessible route, only the handrail

requirement will apply when the stairs are

altered. Exception 2 to section 210.1 of

the 2010 Standards permits altered stairs

to not comply with the requirements for

accessible treads and risers where there is

an accessible route between oors served by

the stairs.

Most commenters were in favor of this

requirement for handrails in alterations and

stated that adding handrails to stairs during

alterations would be feasible and not costly

while providing important safety benets.

The Department believes that it strikes

an appropriate balance by focusing theexpanded requirements on new construction.

The 2010 Standards apply to stairs which

are part of a required means of egress. Few

stairways are not part of a means of egress.

The 2010 Standards are consistent with






most building codes which do not exempt

stairways when the route is also served by a

ramp or elevator.

211 and 602 Drinking Fountains

Sections 4.1.3(10) and 4.15 of the 1991

Standards and sections 211 and 602 of the

2010 Standards require drinking fountains to

be provided for persons who use wheelchairs

and for others who stand. The 1991

Standards require wall and post-mounted

cantilevered drinking fountains mounted

at a height for wheelchair users to provideclear oor space for a forward approach with

knee and toe clearance and free standing

or built-in drinking fountains to provide clear

oor space for a parallel approach. The

2010 Standards require drinking fountains

mounted at a height for wheelchair users

to provide clear oor space for a forward

approach with knee and toe clearance,

and include an exception for a parallel

approach for drinking fountains installed at a

height to accommodate very small children.

The 2010 Standards also include a technical

requirement for drinking fountains for

standing persons.

212 and 606 Kitchens, Kitchenettes,

Lavatories, and Sinks

The 1991 Standards, at sections 4.24, and9.2.2(7), contain technical requirements

for sinks and only have specic scoping

requirements for sinks in transient lodging.


requires at least ve percent (5%) of sinks

in each accessible space to comply with

the technical requirements for sinks. The

technical requirements address clear oor

space, height, faucets, and exposed pipes

and surfaces. The 1991 Standards, at section

4.24, and the 2010 Standards, at section 606,

both require the clear oor space at sinks

to be positioned for a forward approach and

knee and toe clearance to be provided under

the sink. The 1991 Standards, at section

9.2.2(7), allow the clear oor space at kitchen

sinks and wet bars in transient lodging guest

rooms with mobility features to be positionedfor either a forward approach with knee and

toe clearance or for a parallel approach.

The 2010 Standards include an exception

that permits the clear oor space to be

positioned for a parallel approach at kitchen

sinks in any space where a cook top or

conventional range is not provided, and at a

wet bar.

A commenter stated that it is unclear what

the difference is between a sink and a

lavatory, and that this is complicated by

requirements that apply to sinks (ve percent

(5%) accessible) and lavatories (at least one

accessible). The term “lavatory” generally

refers to the specic type of plumbing xture

required for hand washing in toilet and

bathing facilities. The more generic term

“sink” applies to all other types of sinkslocated in covered facilities.

A commenter recommended that the

mounting height of sinks and lavatories






should take into consideration the increased

use of three-wheeled scooters and some

larger wheelchairs. The Department is aware

that the use of three-wheeled scooters and

larger wheelchairs may be increasing and

that some of these devices may require

changes in space requirements in the future.

The Access Board is funding research to

obtain data that may be used to develop

design guidelines that provide access to

individuals using these mobility devices.

213, 603, 604, and 608 Toilet and Bathing

Facilities, Rooms, and Compartments

General. Where toilet facilities and bathing

facilities are provided, they must comply with

section 213 of the 2010 Standards.

A commenter recommended that all

accessible toilet facilities, toilet rooms, and

compartments should be required to have

signage indicating that such spaces are

restricted solely for the use of individuals

with disabilities. The Department believes

that it is neither necessary nor appropriate to

restrict the use of accessible toilet facilities.

Like many other facilities designed to be

accessible, accessible toilet facilities can and

do serve a wide range of individuals with and

without disabilities.

A commenter recommended that more than

one wheelchair accessible compartment beprovided in toilet rooms serving airports and

train stations because these compartments

are likely to be occupied by individuals with

luggage and persons with disabilities often

take longer to use them. The Access Board

is examining airport terminal accessibility

as part of an ongoing effort to facilitate

accessibility and promote effective design.

As part of these efforts, the Access Board will

examine requirements for accessible toilet

compartments in larger airport restrooms.

The Department declines to change the

scoping for accessible toilet compartments at

this time.

Ambulatory Accessible Toilet

Compartments. Section 213.3.1 of the 2010

Standards requires multi-user men’s toilet

rooms, where the total of toilet compartmentsand urinals is six or more, to contain at least

one ambulatory accessible compartment.

The 1991 Standards count only toilet stalls

(compartments) for this purpose. The 2010

Standards establish parity between multi-

user women’s toilet rooms and multi-user

men’s toilet rooms with respect to ambulatory

accessible toilet compartments.

Urinals. Men’s toilet rooms with only one

urinal will no longer be required to provide an

accessible urinal under the 2010 Standards.

Such toilet rooms will still be required to

provide an accessible toilet compartment.

Commenters urged that the exception be

eliminated. The Department believes that

this change will provide exibility to many

small businesses and it does not alter the

requirement that all common use restroomsmust be accessible.

Multiple Single-User Toilet Rooms. Where

multiple single-user toilet rooms are clustered

in a single location, fty percent (50%),






rather than the one hundred percent (100%)

required by the 1991 Standards, are required

to be accessible by section 213.2, Exception

4 of the 2010 Standards. Section 216.8 of

the 2010 Standards requires that accessible

single-user toilet rooms must be identied

by the International Symbol of Accessibility

where all single-user toilet rooms are not

accessible.

Hospital Patient Toilet Rooms. An

exception was added in section 223.1 of the

2010 Standards to allow toilet rooms that

are part of critical or intensive care patientsleeping rooms to no longer be required to

provide mobility features.

Water Closet Location and Rear Grab

Bar. Section 604.2 of the 2010 Standards

allows greater exibility for the placement

of the centerline of wheelchair accessible

and ambulatory accessible water closets.

Section 604.5.2, Exception 1 permits a

shorter grab bar on the rear wall where there

is not enough wall space due to special

circumstances (e.g., when a lavatory or

other recessed xture is located next to

the water closet and the wall behind the

lavatory is recessed so that the lavatory does

not overlap the required clear oor space

at the water closet). The 1991 Standards

contain no exception for grab bar length,

and require the water closet centerline to beexactly 18 inches from the side wall, while

the 2010 Standards requirement allows the

centerline to be between 16 and 18 inches

from the side wall in wheelchair accessible

toilet compartments and 17 to 19 inches in

ambulatory accessible toilet compartments.

Water Closet Clearance. Section 604.3 of

the 2010 Standards represents a change

in the accessibility requirements where a

lavatory is installed adjacent to the water

closet. The 1991 Standards allow the

nearest side of a lavatory to be placed

18 inches minimum from the water closet

centerline and 36 inches minimum from

the side wall adjacent to the water closet.

However, locating the lavatory so close to

the water closet prohibits many individualswith disabilities from using a side transfer.

To allow greater transfer options, including

side transfers, the 2010 Standards prohibit

lavatories from overlapping the clear oor

space at water closets, except in covered

residential dwelling units.

A majority of commenters, including persons

who use wheelchairs, strongly agreed with

the requirement to provide enough space for

a side transfer. These commenters believed

that the requirement will increase the usability

of accessible single-user toilet rooms by

making side transfers possible for many

individuals who use wheelchairs and would

have been unable to transfer to a water

closet using a side transfer even if the water

closet complied with the 1991 Standards. In

addition, many commenters noted that theadditional clear oor space at the side of the

water closet is also critical for those providing

assistance with transfers and personal care

for persons with disabilities. Numerous

comments noted that this requirement is






already included in other model accessibility

standards and many state and local building

codes and its adoption in the 2010 Standards

is a important part of harmonization efforts.

The Department agrees that the provision

of enough clear oor space to permit side

transfers at water closets is an important

feature that must be provided to ensure

access for persons with disabilities in

toilet and bathing facilities. Furthermore,

the adoption of this requirement closely

harmonizes with the model codes and many

state and local building codes.

Other commenters urged the Department not

to adopt section 604.3 of the 2010 Standards

claiming that it will require single-user

toilet rooms to be two feet wider than the

1991 Standards require, and this additional

requirement will be difcult to meet. Multiple

commentators also expressed concern that

the size of single-user toilet rooms would

be increased but they did not specify how

much larger such toilet rooms would have to

be in their estimation. In response to these

concerns, the Department developed a

series of single-user toilet room oor plans

demonstrating that the total square footage

between representative layouts complying

with the 1991 Standards and the 2010

Standards are comparable. The Department

believes the oor plan comparisons clearly

show that size differences between the twoStandards are not substantial and several of

the 2010 Standards-compliant plans do not

require additional square footage compared

to the 1991 Standards plans. These single-

user toilet room oor plans are shown below.

Several commenters concluded that

alterations of single-user toilet rooms

should be exempt from the requirements

of section 604.3 of the 2010 Standards

because of the signicant reconguration and

reconstruction that would be required, such

as moving plumbing xtures, walls, and/or

doors at signicant additional expense. The

Department disagrees with this conclusion

since it fails to take into account several

key points. The 2010 Standards contain

provisions for in-swinging doors, 603.2.3,

Exception 2, and recessed xtures adjacent

to water closets, 604.5.2, Exception 1. Theseprovisions give exibility to create more

compact room designs and maintain required

clearances around xtures. As with the 1991

Standards, any alterations must comply to

the extent that it is technically feasible to do

so.

The requirements at section 604.3.2 of

the 2010 Standards specify how required

clearance around the water closet can

overlap with specic elements and spaces.

An exception that applies only to covered

residential dwelling units permits a lavatory

to be located no closer than 18 inches

from the centerline of the water closet.

The requirements at section 604.3.2 of the

2010 Standards increase accessibility for

individuals with disabilities. One commenter

expressed concern about other items thatmight overlap the clear oor space, such as

dispensers, shelves, and coat hooks on the

side of the water closet where a wheelchair

would be positioned for a transfer. Section

604.3.2 of the 2010 Standards allows items






such as associated grab bars, dispensers,

sanitary napkin disposal units, coat hooks,

and shelves to overlap the clear oor space.

These are items that typically do not affect

the usability of the clear oor space.

Toilet Room Doors. Sections 4.22.2 and

4.22.3 of the 1991 Standards and Section

603.2.3 of the 2010 Standards permit the

doors of all toilet or bathing rooms with in-

swinging doors to swing into the required

turning space, but not into the clear oor

space required at any xture. In single-

user toilet rooms or bathing rooms, Section603.2.3 Exception 2 of the 2010 Standards

permits the door to swing into the clear oor

space of an accessible xture if a clear oor

space that measures at least 30 inches by 48

inches is provided outside of the door swing.

Several commenters expressed reservations

about Exception 2 of Section 603.2.3.

Concerns were raised that permitting

doors of single-user toilet or bathing rooms

with in-swinging doors to swing into the

clearance around any xture will result in

inaccessibility to individuals using larger

wheelchairs and scooters. Additionally, a

commenter stated that the exception would

require an unacceptable amount of precision

maneuvering by individuals who use standard

size wheelchairs. The Department believes

that this provision achieves necessaryexibility while providing a minimum standard

for maneuvering space. The standard does

permit additional maneuvering space to be

provided, if needed.

In the NPRM, the Department provided

a series of plan drawings illustrating

comparisons of the minimum size single-

user toilet rooms. These oor plans

showed typical examples that met the

minimum requirements of the proposed

ADA Standards. A commenter was of the

opinion that the single-user toilet plans

shown in the NPRM demonstrated that

the new requirements will not result in a

substantial increase in room size. Several

other commenters representing industry

offered criticisms of the single-user toilet

oor plans to support their assertion that a2010 Standards-compliant single-user toilet

room will never be smaller and will likely

be larger than such a toilet room required

under the 1991 Standards. Commenters

also asserted that the oor plans prepared

by the Department were of a very basic

design which could be accommodated in

a minimal sized space whereas the types

of facilities their customers demand would

require additional space to be added to

the rooms shown in the oor plans. The

Department recognizes that there are many

design choices that can affect the size of a

room or space. Choices to install additional

features may result in more space being

needed to provide sufcient clear oor

space for that additional feature to comply.

However, many facilities that have these

extra features also tend to have ample spaceto meet accessibility requirements. Other

commenters asserted that public single-

user toilet rooms always include a closer

and a latch on the entry door, requiring a

larger clear oor space than shown on the





Department of JusticeDepartment of Justice

push side of the door shown in Plan 1B. The

Department acknowledges that in instances

where a latch is provided and a closer is

required by other regulations or codes, the

minimum size of a room with an out-swinging

door may be slightly larger than as shown in

Plan 1C.

Additional oor plans of single-user toilet

rooms are now included in further response

to the commentary received.



Guidance on the 2010 Standards: Titles II and III - 97Department of Justice

1991 Standards 2010 Standards

Comparison of Single-User Toilet Room Layouts

This plan shows a typical example of a single-user

toilet room that meets the minimum requirements

of the 1991 Standards. The size of this space is

determined by the minimum width required for the

water closet and lavatory between the side walls, the

minimum wheelchair turning space, and the space

required for the out-swinging door. A lavatory with knee

space can overlap the clear oor space required for

the water closet provided that at least 36 inches of

clearance is maintained between the side wall next to

the water closet and the lavatory (see section 4.16.2and Fig. 28 of the 1991 Standards). A wheelchair

turning space meeting section 4.2.3 of the 1991

Standards must be provided. The size of this room

requires that the entry door swing out. The room would

be larger if the door were in-swinging.

Plan-1B: 2010 Standards Minimum with

Out-Swinging Door

7’-0” x 5’-0” • 35.00 Square Feet



of the 2010 Standards. Features include: ve-foot

minimum width between the side wall of the watercloset and the lavatory; 60-inch minimum circular

wheelchair turning space; and 36-inch by 48-inch

clear maneuvering space for the out-swinging entry

door. Section 604.3.1 of the 2010 Standards requires

a oor clearance at a water closet that is a minimum

of 60 inches wide by 56 inches deep regardless

of approach. Section 604.3.2 prohibits any other

plumbing xtures from being located in this clear

space, except in residential dwelling units. The 2010

Standards, at section 304.3, allows the turning space

to extend into toe and knee space provided beneath

xtures and other elements. Required maneuvering

space for the entry door (inside the room) must be

clear of all xtures. If the door had both a closer

and latch, section 404.2.4.1 and Figure 404.2.4.1(c)

require additional space on the latch side.

This layout is three point ve percent (3.5%) smaller

than the accompanying Plan-1A: 1991 Standards

Minimum with Out-Swinging Door example.

Plan-1A: 1991 Standards Minimum with

Out-Swinging Door

5’-0” x 7’-3” • 36.25 Square Feet



98 - Guidance on the 2010 Standards: Titles II and III Department of Justice

2010 Standards


Plan-1C: 2010 Standards Minimum with

Out-Swinging Door (entry door has both closer and latch)

7’-0” x 5’-6” • 38.50 Square Feet

This plan shows the same typical features of a single-

user toilet room that meets the minimum requirements

of the 2010 Standards as Plan-1B does except the

entry door has both a closer and latch. Because the

door has both a closer and latch, a minimum additional

foot of maneuvering space is required on the latch side

(see section 404.2.4.1 and Figure 404.2.4.1(c) of the

2010 Standards).

This layout is six point two percent (6.2%) larger than

the accompanying Plan-1A: 1991 Standards Minimumwith Out-Swinging Door example.




Plan-2B: 2010 Standards Minimum

with In-Swinging Door

7’-0” x 6’-6” • 45.50 Square Feet


toilet room that meets the minimum requirements of

the 2010 Standards when the entry door swings into

the room. In the 2010 Standards an exception allows

the entry door to swing over the clear oor spaces and

clearances required at the xtures if a clear oor space

complying with section 305.3 (minimum

30 inches by 48 inches) is provided outside the arc

of the door swing, section 603.3.3 exception 2. The

required maneuvering space for the door, section

404.2.4.1 and Figure 404.2.4.1(a), also is a factor in

room size. This clear space cannot be obstructed bythe plumbing xtures. Note that this layout provides

more space for turning when the door is closed than

Plan-1B.

This layout is seven percent (7%) larger than the

accompanying Plan-2A: 1991 Standards Minimum with

In-Swinging Door example.

Plan-2A: 1991 Standards Minimum


5’-0” x 8’-6” • 42.50 Square Feet



of the 1991 Standards. Depending on the width of

the hallway and other circulation issues, it can be

preferable to swing the entry door into the toilet room.

Businesses and public entities typically prefer to have

an in-swinging door. The in-swinging door increases

overall room size because it cannot swing over the

required clear oor space at any accessible xture,

(see section 4.22.2 of the 1991 Standards). This

increases the room depth from Plan-1A. The door is

permitted to swing over the required turning spaceshown as a 60-inch circle.







2010 Standards

Plan-2C: 2010 Standards Minimum


7’-0” x 6’-6” • 40.00 Square Feet(plumbing chase not included)

This plan shows the same typical features of a single-

user toilet room that meets the minimum requirements

of the 2010 Standards as Plan-2B when the entry

door swings into the room. Note that this layout also

provides more space for turning when the door is

closed than Plan-1B.

This layout is six point two ve percent (6.25%)

smaller than the accompanying Plan-2A: 1991

Standards Minimum with In-Swinging Door example.




1991 Standards and 2010 Standards

Plan-3: Meets Both 1991 Standards

and 2010 Standards

7’-0” x 5’-9” • 40.25 Square Feet

This plan shows an example of a single-user toilet

room that meets the minimum requirements of both

the 1991 Standards and 2010 Standards. A T-shaped

turning space has been used (see Fig. 3(a) of the

1991 Standards and Figure 304.3.2 of the 2010

Standards) to maintain a compact room size. An out-

swinging door also minimizes the overall layout depth

and cannot swing over the required clear oor space

or clearance at any accessible plumbing xture.

This layout is eleven percent (11%) larger than thePlan-1A: 1991 Standards Minimum with Out-Swinging

Door example shown at the beginning of these plan

comparisons.





Comparison of Single-User Toilet Room “Pairs” With Fixtures Side-by-Side

Plan-1A Pair: 1991 Standards with Out-

Swinging Doors

Two 5’-0” x 7’-3” Rooms –

72.50 Square Feet Total

Plan-1B Pair: 2010 Standards with

Out-Swinging Doors

Two 7’-0” x 5’-0” Rooms –



These plans show men’s/women’s room congurations using Plans 1A and 1B.




Plan-2C Pair: 2010 Standards with

In-Swinging Doors

Two 7’-2” x 6’-6” Rooms -


Comparison of Single-User Toilet Room “Pairs” With Fixtures Side-by-Side

2010 Standards

This plan shows a men’s/women’s room

conguration using Plan 2C.






Shower Spray Controls. In accessible

bathtubs and shower compartments, sections


require shower spray controls to have an

on/off control and to deliver water that is

120°F (49°C) maximum. Neither feature was

required by the 1991 Standards, but may

be required by plumbing codes. Delivering

water that is no hotter than 120°F (49°C) will

require controlling the maximum temperature

at each accessible shower spray unit.

Shower Compartments. The 1991

Standards at sections 4.21 and 9.1.2 andthe 2010 Standards at section 608 contain

technical requirements for transfer-type

and roll-in shower compartments. The 2010

Standards provide more exibility than the

1991 Standards as follows:

• Transfer-type showers are exactly 36

inches wide by 36 inches long.

• The 1991 Standards and the 2010 Stan-

dards permit a ½-inch maximum curb in

transfer-type showers. The 2010 Stan-

dards add a new exception that permits

a 2-inch maximum curb in transfer-type

showers in alterations to existing facili-

ties, where recessing the compartment

to achieve a ½-inch curb will disturb the

structural reinforcement of the oor slab.

• Roll-in showers are 30 inches wide mini-

mum by 60 inches long minimum. Alter-

nate roll-in showers are 36 inches wide

by 60 inches long minimum, and have a

36-inch minimum wide opening on the

Toilet Paper Dispensers. The provisions

for toilet paper dispensers at section 604.7 of

the 2010 Standards require the dispenser to

be located seven inches minimum and nine

inches maximum in front of the water closet

measured to the centerline of the dispenser.

The paper outlet of the dispenser must be

located 15 inches minimum and 48 inches

maximum above the nish oor. In the 1991

Standards the location of the toilet paper

dispenser is determined by the centerline

and forward edge of the dispenser. In the

2010 Standards the mounting location of the

toilet paper dispenser is determined by thecenterline of the dispenser and the location

of the outlet for the toilet paper.

One commenter discussed the difculty

of using large roll toilet paper dispensers

and dispensers with two standard size rolls

stacked on top of each other. The size of

the large dispensers can block access to

the grab bar and the outlet for the toilet

paper can be too low or too high to be

usable. Some dispensers also control the

delivery of the toilet paper which can make

it impossible to get the toilet paper. Toilet

paper dispensers that control delivery or

do not allow continuous paper ow are not

permitted by the 1991 Standards or the 2010

Standards. Also, many of the large roll toilet

paper dispensers do not comply with the

2010 Standards since their large size doesnot allow them to be mounted 12 inches

above or 1 ½ inches below the side grab bar

as required by section 609.3.






long side of the compartment. The 1991

Standards require alternate roll-in show-

ers in a portion of accessible transient

lodging guest rooms, but provision of this

shower type in other facilities is gener-

ally permitted as an equivalent facilita-

tion. The 1991 Standards require a seat

to be provided adjacent to the opening;

and require the controls to be located on

the side adjacent to the seat. The 2010

Standards permit alternate roll-in showers

to be used in any facility, only require a

seat in transient lodging guest rooms, and

allow location of controls on the back wallopposite the seat as an alternative.

Commenters raised concerns that adding

a new exception that permits a 2-inch

maximum curb in transfer-type showers

in alterations to existing facilities, where

recessing the compartment to achieve

a ½-inch curb will disturb the structural

reinforcement of the oor slab, will impair the

ability of individuals with disabilities to use

transfer-type showers.

The exception in section 608.7 of the 2010

Standards permitting a 2-inch maximum curb

in transfer-type showers is allowed only in

existing facilities where provision of a ½-inch

high threshold would disturb the structural

reinforcement of the oor slab. Whenever this

exception is used the least high thresholdthat can be used should be provided, up to a

maximum height of 2 inches. This exception

is intended to provide some exibility

where the existing structure precludes full

compliance.

Toilet and Bathing Rooms. Section 213

of the 2010 Standards sets out the scoping

requirements for toilet and bathing rooms.

Commenters recommended that section 213,

Toilet Facilities and Bathing Facilities, of the

2010 Standards include requirements that

unisex toilet and bathing rooms be provided

in certain facilities. These commenters

suggested that unisex toilet and bathing

rooms are most useful as companion care

facilities.

Model plumbing and building codes requiresingle-user (unisex or family) toilet facilities

in certain occupancies, primarily assembly

facilities, covered malls, and transportation

facilities. These types of toilet rooms provide

exibility for persons needing privacy so

that they can obtain assistance from family

members or persons of the opposite sex.

When these facilities are provided, both the

1991 Standards and 2010 Standards require

that they be accessible. The 2010 Standards

do not scope unisex toilet facilities because

plumbing codes generally determine the

number and type of plumbing xtures to

be provided in a particular occupancy and

often determine whether an occupancy must

provide separate sex facilities in addition to

single-user facilities. However, the scoping

at section 213.2.1 of the 2010 Standards

coordinates with model plumbing and buildingcode requirements which will permit a small

toilet room with two water closets or one

water closet and one urinal to be considered

a single-user toilet room provided that the

room has a privacy latch. In this way, a








The 2010 Standards retain the option to

provide one sign where both visual and tactile

characters are provided or two signs, one

with visual, and one with tactile characters.

217 and 704 Telephones

Drive-up Public Telephones. Where public

telephones are provided, the 1991 Standards,

at section 4.1.3(17)(a), and section 217.2 of

the 2010 Standards, require a certain number

of telephones to be wheelchair accessible.

The 2010 Standards add a new exception

that exempts drive-up public telephones.

Text Telephones (TTY). Section 4.1.3(17)

of the 1991 Standards requires a public TTY

to be provided if there are four or more public

pay telephones at a site and at least one is

in an interior location. Section 217.4.2 of the

2010 Standards requires that a building or

facility provide a public TTY on each oor that

has four or more public telephones, and in

each telephone bank that has four or more

telephones. Additionally, section 217.4.4 of

the 2010 Standards requires that at least

one public TTY be installed where four or

more public pay telephones are provided

on an exterior site. Section 217.4.5 of the

2010 Standards also requires that a public

TTY be provided where at least one public

pay telephone is provided at a public rest

stop, emergency roadside stop, or serviceplaza. Section 217.4.6 of the 2010 Standards

also requires that a public TTY be provided

at each location where at least one public

pay telephone is provided serving a hospital

emergency room, a hospital recovery room,

or a hospital waiting room. Section 217.4.7

of the 2010 Standards also requires that,

in addition to the requirements for a public

TTY to be provided at each location where

at least four or more public pay telephones

are provided at a bank of pay telephones

and where at least one public pay telephone

is provided on a oor or in a public building,

where at least one public pay telephone

serves a particular entrance to a bus or

rail facility at least one public TTY must

serve that entrance. In airports, in addition

to the requirements for the provision of apublic TTY at phone banks, on oors, and

in public buildings with pay phones, where

four or more public pay phones are located

in a terminal outside the security areas, in

a concourse within the security areas, or a

baggage claim area in a terminal at least one

public TTY must be provided. Section 217.4.8

of the 2010 Standards also requires that a

TTY be provided in at least one secured area

where at least one pay telephone is provided

in a secured area used only by detainees or

inmates and security personnel in detention

and correctional facilities.

Wheelchair Accessible Telephones


that where public telephones are provided

wheelchair accessible telephones complyingwith section 704.2 must be provided in

accordance with Table 217.2.






A commenter stated that requiring installation

of telephones within the proposed reach

range requirements would adversely

impact public and telephone owners and

operators. According to the commenter,

individuals without disabilities will not use

telephones that are installed within the reach

range requirements because they may be

inconvenienced by having to stoop to operate

these telephones, and, therefore, owners and

operators will lose revenue due to less use of

public telephones.

This comment misunderstands the scopingrequirements for wheelchair accessible

telephones. Section 217.2 of the 2010

Standards provides that where one or more

single units are provided, only one unit per

oor, level, or exterior site is required to be

wheelchair accessible. However, where

banks of telephones are provided, only one

telephone in each bank is required to be

wheelchair accessible. The Department

believes these scoping requirements for

wheelchair accessible telephones are

reasonable and will not result in burdensome

obligations or lost revenue for owners and

operators.

218 and 810 Transportation Facilities

Detectable Warnings. Detectable warnings

provide a distinctively textured surface oftruncated domes. The 1991 Standards at

sections 4.1.3(15), 4.7.7, 4.29.2, 4.29.5,

4.29.6, and 10.3.1(8) require detectable

warnings at curb ramps, hazardous vehicular

areas, reecting pools, and transit platform

edges. The 2010 Standards at sections

218, 810.5, 705.1, and 705.2 only require

detectable warnings at transit platform edges.

The technical specications for the diameter

and spacing of the truncated domes have

also been changed. The 2010 Standards

also delete the requirement for the material

used to contrast in resiliency or sound-on-

cane contact from adjoining walking surfaces

at interior locations.

The 2010 Standards apply to detectable

warnings on developed sites. They do notapply to the public right-of-way. Scoping

for detectable warnings at all locations

other than transit platform edges has

been eliminated from the 2010 Standards.

However, because detectable warnings

have been shown to signicantly benet

individuals with disabilities at transit platform

edges, the 2010 Standards provide scoping

and technical requirements for detectable

warnings at transit platform edges.

219 and 706 Assistive Listening Systems

Signs. Section 216.10 of the 2010

Standards requires each covered assembly

area to provide signs at each auditorium

to inform patrons that assistive listening

systems are available. However, an exception

to this requirement permits assembly areasthat have ticket ofces or ticket windows

to display the required signs at the ticket

window.






A commenter recommended eliminating the

exception at 216.10 because, for example,

people who buy tickets through the mail, by

subscription, or on-line may not need to stop

at a ticket ofce or window upon arrival at the

assembly area. The Department believes that

an individual’s decision to purchase tickets

before arriving at a performance does not

limit the discretion of the assembly operator

to use the ticket window to provide other

services to its patrons. The Department

retained the exception at 216.10 to permit the

venue operator some exibility in determining

how to meet the needs of its patrons.

Audible Communication. The 1991

Standards, at section 4.1.3(19)(b),

require assembly areas, where audible

communication is integral to the use of the

space, to provide an assistive listening

system if they have an audio amplication

system or an occupant load of 50 or

more people and have xed seating. The

2010 Standards at section 219 require

assistive listening systems in spaces where

communication is integral to the space

and audio amplication is provided and in

courtrooms.

The 1991 Standards require receivers to

be provided for at least four percent (4%)

of the total number of xed seats. The 2010

Standards, at section 219.3, revise thepercentage of receivers required according

to a table that correlates the required number

of receivers to the seating capacity of the

facility. Small facilities will continue to provide

receivers for four percent (4%) of the seats.

The required percentage declines as the size

of the facility increases. The changes also

require at least twenty-ve percent (25%),

but no fewer than two, of the receivers to

be hearing-aid compatible. Assembly areas

served by an induction loop assistive listening

system will not have to provide hearing-aid

compatible receivers.

Commenters were divided in their

opinion of this change. The Department

believes that the reduction in the required

number of assistive listening systems

for larger assembly areas will meet theneeds of individuals with disabilities. The

new requirement to provide hearing-aid

compatible receivers should make assistive

listening systems more usable for people who

have been underserved until now.

Concerns were raised that the requirement

to provide assistive listening systems may

have an adverse impact on restaurants.

This comment misunderstands the scope of

coverage. The 2010 Standards dene the

term “assembly area” to include facilities

used for entertainment, educational, or civic

gatherings. A restaurant would fall within this

category only if it is presenting programs to

educate or entertain diners, and it provides

an audio amplication system.

Same Management or Building. The 2010Standards add a new exception that allows

multiple assembly areas that are in the same

building and under the same management,

such as theaters in a multiplex cinema

and lecture halls in a college building, to






calculate the number of receivers required

based on the total number of seats in all the

assembly areas, instead of each assembly

area separately, where the receivers are

compatible with the assistive listening

systems used in each of the assembly areas.

Mono Jacks, Sound Pressure, Etc.

Section 4.33.7 of the 1991 Standards does

not contain specic technical requirements

for assistive listening systems. The 2010

Standards at section 706 require assistive

listening systems to have standard mono

jacks and will require hearing-aid compatiblereceivers to have neck loops to interface with

telecoils in hearing aids. The 2010 Standards

also specify sound pressure level, signal-to-

noise ratio, and peak clipping level. Currently

available assistive listening systems typically

meet these technical requirements.

220 and 707 Automatic Teller Machines

and Fare Machines

Section 707 of the 2010 Standards adds

specic technical requirements for speech

output, privacy, tactilely-discernible input

controls, display screens, and Braille

instructions to the general accessibility

requirements set out in the 1991 Standards.

Machines shall be speech enabled

and exceptions are provided that cover

when audible tones are permitted, whenadvertisements or similar information are

provided, and where speech synthesis

cannot be supported. The 1991 Standards

require these machines to be accessible to

and independently usable by persons with

visual impairments, but do not contain any

technical specications.

221 Assembly Areas

Wheelchair Spaces/Companion Seats.

Owners of large assembly areas have

historically complained to the Department

that the requirement for one percent (1%)

of seating to be wheelchair seating is

excessive and that wheelchair seats are

not being sold. At the same time, advocates

have traditionally argued that persons whouse wheelchairs will increasingly participate

in activities at assembly areas once they

become accessible and that at least one

percent (1%) of seats should be accessible.

The 1991 Standards, at sections 4.1.3(19)

(a) and 4.33.3, require assembly areas to

provide wheelchair and companion seats.

In assembly areas with a capacity of more

than ve hundred seats, accessible seating

at a ratio of one percent (1%) (plus one

seat) of the number of traditional xed seats

must be provided. The 2010 Standards, at

section 221.2, require assembly areas with

501 to 5000 seats to provide at least six


plus one additional wheelchair space for

each additional 150 seats (or fraction thereof)

between 501 through 5000. In assemblyareas with more than 5000 seats at least 36

wheelchair spaces and companion seats plus

one additional wheelchair space for each






200 seats (or fraction thereof) more than

5000 are required. See sections 221.1 and

221.2 of the 2010 Standards.

Commenters questioned why scoping

requirements for large assembly areas are

being reduced. During the development

of the 2004 ADAAG, industry providers,

particularly those representing larger

stadium-style assembly areas, supplied

data to the Access Board demonstrating

the current scoping requirements for large

assembly areas often exceed the demand.

Based on the data provided to the AccessBoard, the Department believes the reduced

scoping requirements will adequately meet

the needs of individuals with disabilities, while

balancing concerns of the industry.

Commenters representing assembly areas

supported the reduced scoping. One

commenter asked that scoping requirements

for larger assembly areas be reduced even

further. Although the commenter referenced

data demonstrating that wheelchair spaces

in larger facilities with seating capacities

of 70,000 or more may not be used by

individuals with disabilities, the data was not

based on actual results, but was calculated

at least in part based on probability

assumptions. The Department is not

convinced that further reductions should be

made based upon those projections and thatfurther reductions would not substantially limit

accessibility at assembly areas for persons

who use wheelchairs.


claries that the scoping requirements for

wheelchair spaces and companion seats are

to be applied separately to general seating

areas and to each luxury box, club box, and

suite in arenas, stadiums, and grandstands.

In assembly areas other than arenas,

stadiums, and grandstands, the scoping

requirements will not be applied separately.

Thus, in performing arts facilities with tiered

boxes designed for spatial and acoustical

purposes, the scoping requirement is to

be applied to the seats in the tiered boxes.

The requisite number of wheelchair spacesand companion seats required in the tiered

boxes are to be dispersed among at least

twenty percent (20%) of the tiered boxes.

For example, if a performing arts facility has

20 tiered boxes with 10 xed seats in each

box, for a total of 200 seats, at least ve


must be provided in the boxes, and they must

be dispersed among at least four of the 20

boxes.

Commenters raised concerns that the 2010

Standards should clarify requirements for

scoping of seating areas and that requiring

accessible seating in each luxury box, club

box, and suite in arenas, stadiums and

grandstands could result in no wheelchair

and companion spaces available for

individuals with disabilities in the generalseating area(s). These comments appear to

misunderstand the requirements. The 2010

Standards require each luxury box, club box,

and suite in an arena, stadium or grandstand

to be accessible and to contain wheelchair








www.ada.gov/stadium.pdf. The Department

also interpreted the section 4.33.3

comparable lines of sight requirement to

mean that wheelchair spaces and companion

seats in stadium-style movie theaters must

provide patrons with disabilities and their

companions with viewing angles comparable

to those provided to other spectators.

Sections 221.2.3 and 802.2 of the

2010 Standards add specic technical

requirements for providing lines of sight

over seated and standing spectators

and also require wheelchair spaces andcompanion seats (per section 221.3) to

provide individuals with disabilities choices

of seating locations and viewing angles that

are substantially equivalent to, or better

than, the choices of seating locations and

viewing angles available to other spectators.

This applies to all types of assembly areas,

including stadium-style movie theaters,

sports arenas, and concert halls. These rules

are expected to have minimal impact since

they are consistent with the Department’s

longstanding interpretation of the 1991

Standards and technical assistance.

Commenters stated that the qualitative

viewing angle language contained in section

221.2.3 is not appropriate for an enforceable

regulatory standard unless the terms of such

language are dened. Other commentersrequested denitions for viewing angles,

an explanation for precisely how viewing

angles are measured, and an explanation

for precisely how to evaluate whether one

viewing angle is better than another viewing

angle. The Department is convinced that the

regulatory language in the 2010 Standards

is sufcient to provide a performance-based

standard for designers, architects, and other

professionals to design facilities that provide

comparable lines of sight for wheelchair

seating in assembly areas, including viewing

angles. The Department believes that as a

general rule, the vast variety of sizes and

congurations in assembly areas requires

it to establish a performance standard

for designers to adapt to the specic

circumstances of the venue that is being

designed. The Department has implementedmore explicit requirements for stadium-style

movie theaters in 28 CFR 36.406(f) and

35.151(g) of the nal regulations based on

experience and expertise gained after several

major enforcement actions.

Another commenter inquired as to what

determines whether a choice of seating

locations or viewing angles is better than

that available to all other spectators. The

answer to this question varies according to

each assembly area that is being designed,

but designers and venue operators

understand which seats are better and that

understanding routinely drives design choices

made to maximize prot and successful

operation of the facility, among other things.

For example, an “equivalent or better” line of

sight in a major league football stadium wouldbe different than for a 350-seat lecture hall.

This performance standard is based upon

the underlying principle of equal opportunity

for a good viewing experience for everyone,

including persons with disabilities. The






Department believes that for each specic

facility that is designed, the owner, operator,

and design professionals will be able to

distinguish easily between seating locations

and the quality of the associated lines of

sight from those seating locations in order

to decide which ones are better than others.

The wheelchair locations do not have to be

exclusively among the seats with the very

best lines of sight nor may they be exclusively

among the seats with the worst lines of sight.

Rather, wheelchair seating locations should

offer a choice of viewing experiences and be

located among the seats where most of theaudience chooses to sit.


requires wheelchair spaces and companion

seating to be offered at a choice of admission

prices, but section 221.2.3.2 of the 2010

Standards no longer requires wheelchair

spaces and companion seats to be dispersed

based on admission prices. Venue owners

and operators commented during the 2004

ADAAG rulemaking process that pricing is

not always established at the design phase

and may vary from event to event within the

same facility, making it difcult to determine

where to place wheelchair seats during the

design and construction phase. Their concern

was that a failure by the venue owner or

operator to provide a choice of ticket prices

for wheelchair seating as required by the1991 Standards governing new construction

could somehow unfairly subject parties

involved in the design and construction to

liability unknowingly.

Sections 221.2.3.2 and 221.3 of the 2010

Standards require wheelchair spaces and

companion seats to be vertically dispersed

at varying distances from the screen,

performance area, or playing eld. The

2010 Standards, at section 221.2.3.2, also

require wheelchair spaces and companion

seats to be located in each balcony or

mezzanine served by an accessible route.

The nal regulations at 28 CFR 35.151(g)

(1) and 36.406(f)(1) also require assembly

areas to locate wheelchair spaces and

companion seats at all levels of the facility

that include seating and that are served by anaccessible route. The Department interprets

that requirement to mean that wheelchair

and companion seating must be provided

in a particular area even if the accessible

route may not be the same route that other

individuals use to reach their seats. For

example, if other patrons reach their seats

on the eld by an inaccessible route (e.g., by

stairs), but there is an accessible route that

complies with section 206.3 that could be

connected to seats on the eld, accessible

seats must be placed on the eld even if that

route is not generally available to the public.

The 2010 Standards, at section 221.2.3.2,

provide an exception for vertical dispersion

in assembly areas with 300 or fewer seats if

the wheelchair spaces and companion seats

provide viewing angles that are equivalent

to, or better than, the average viewing angleprovided in the facility.








to be dispersed horizontally. In addition, 28

CFR 35.151(g)(2) and 36.406(f)(2) require

assembly areas that have seating around

the eld of play or performance area to place

wheelchair spaces and companion seating all

around that eld of play or performance area.

Stadium-Style Movie Theaters

Pursuant to 28 CFR 35.151(g) and 36.406(f),

in addition to other obligations, stadium-style

movie theaters must meet horizontal andvertical dispersion requirements set forth

in sections 221.2.3.1 and 221.2.3.2 of the

2010 Standards; placement of wheelchair

and companion seating must be on a riser

or cross-aisle in the stadium section of the

theater; and placement of such seating

must satisfy at least one of the following

criteria: (i) it is located within the rear sixty

percent (60%) of the seats provided in the

auditorium; or (ii) it is located within the area

of the auditorium where the vertical viewing

angles are between the 40th and 100th

percentile of vertical viewing angles for all

seats in that theater as ranked from the rst

row (1st percentile) to the back row (100th

percentile). The line-of-sight requirements

recognize the importance to the movie-going

experience of viewing angles, and the nal

regulations ensure that movie patrons withdisabilities are provided views of the movie

screen comparable to other theater patrons.

Some commenters supported regulatory

language that would require stadium-style

theaters to meet standards of accessibility

equal to those of non-stadium-style theaters,

with larger theaters being required to provide

accessible seating locations and viewing

angles equal to those offered to individuals

without disabilities.

One commenter noted that stadium-style

movie theaters, sports arenas, music

venues, theaters, and concert halls each

pose unique conditions that require separate

and specic standards to accommodate

patrons with disabilities, and recommended

that the Department provide more specic

requirements for sports arenas, musicvenues, theaters, and concert halls. The

Department has concluded that the 2010

Standards will provide sufcient exibility to

adapt to the wide variety of assembly venues

covered.

Companion Seats. Section 4.33.3 of the

1991 Standards required at least one xed

companion seat to be provided next to each

wheelchair space. The 2010 Standards at

sections 221.3 and 802.3 permit companion

seats to be movable. Several commenters

urged the Department to ensure that

companion seats are positioned in a manner

that places the user at the same shoulder

height as their companions using mobility

devices. The Department recognizes that

some facilities have created problems by

locating the wheelchair space and companionseat on different oor elevations (often

a difference of one riser height). Section

802.3.1 of the 2010 Standards addresses this

problem by requiring the wheelchair space

and the companion seat to be on the same






oor elevation. This solution should prevent

any vertical discrepancies that are not the

direct result of differences in the sizes and

congurations of wheelchairs.

Designated Aisle Seats. Section 4.1.3(19)

(a) of the 1991 Standards requires one

percent (1%) of xed seats in assembly

areas to be designated aisle seats with

either no armrests or folding or retractable

armrests on the aisle side of the seat. The

2010 Standards, at sections 221.4 and 802.4,

base the number of required designated

aisle seats on the total number of aisle seats,instead of on all of the seats in an assembly

area as the 1991 Standards require. At

least ve percent (5%) of the aisle seats are

required to be designated aisle seats and to

be located closest to accessible routes. This

option will almost always result in fewer aisle

seats being designated aisle seats compared

to the 1991 Standards. The Department is

aware that sports facilities typically locate

designated aisle seats on, or as near to,

accessible routes as permitted by the

conguration of the facility.

One commenter recommended that section

221.4, Designated Aisle Seats, be changed to

require that aisle seats be on an accessible

route, and be integrated and dispersed

throughout an assembly area. Aisle seats,

by their nature, typically are located withinthe general seating area, and integration

occurs almost automatically. The issue of

dispersing aisle seats or locating them on

accessible routes is much more challenging.

During the separate rulemaking on the

2004 ADAAG the Access Board specically

requested public comment on the question of

whether aisle seats should be required to be

located on accessible routes. After reviewing

the comments submitted during the 2004

Access Board rulemaking, the Access Board

concluded that this could not be done without

making signicant and costly changes in the

design of most assembly areas. However,

section 221.4 of the 2004 ADAAG required

that designated aisle seats be the aisle seats

closest to accessible routes. The Department

proposed the same provision and concurs inthe Access Board’s conclusion and declines

to implement further changes.

Team or Player Seating Areas. Section

221.2.1.4 of the 2010 Standards requires

that at least one wheelchair space compliant

with section 802.1 be provided in each team

or player seating area serving areas of sport

activity. For bowling lanes, the requirement

for a wheelchair space in player seating

areas is limited to lanes required to be

accessible.

Lawn Seating. The 1991 Standards, at

section 4.1.1(1), require all areas of newly

constructed facilities to be accessible, but do

not contain a specic scoping requirement

for lawn seating in assembly areas. The

2010 Standards, at section 221.5, specicallyrequire lawn seating areas and exterior

overow seating areas without xed seats to

connect to an accessible route.






Aisle Stairs and Ramps in Assembly

Areas. Sections 4.1.3 and 4.1.3(4) of the

1991 Standards require that interior and

exterior stairs connecting levels that are not

connected by an elevator, ramp, or other

accessible means of vertical access must

comply with the technical requirements

for stairs set out in section 4.9 of the 1991

Standards. Section 210.1 of the 2010

Standards requires that stairs that are part

of a means of egress shall comply with

section 504’s technical requirements for

stairs. The 1991 Standards do not contain

any exceptions for aisle stairs in assemblyareas. Section 210.1, Exception 3 of the

2010 Standards adds a new exception that

exempts aisle stairs in assembly areas

from section 504’s technical requirements

for stairs, including section 505’s technical

requirements for handrails.

Section 4.8.5 of the 1991 Standards exempts

aisle ramps that are part of an accessible

route from providing handrails on the side

adjacent to seating. The 2010 Standards, at

section 405.1, exempt aisle ramps adjacent

to seating in assembly areas and not serving

elements required to be on an accessible

route, from complying with all of section

405’s technical requirements for ramps.

Where aisle ramps in assembly areas serve

elements required to be on an accessible

route, the 2010 Standards require thatthe aisle ramps comply with section 405’s

technical requirements for ramps. Sections


provide exceptions for aisle ramp handrails.

Section 505.2 states that in assembly areas,

a handrail may be provided at either side

or within the aisle width when handrails are

not provided on both sides of aisle ramps.

Section 505.3 states that, in assembly areas,

handrails need not be continuous in aisles

serving seating.

222 and 803 Dressing, Fitting, and Locker

Rooms

Dressing rooms, tting rooms, and locker

rooms are required to comply with the

accessibility requirements of sections 222

and 803 of the 2010 Standards. Where thesetypes of rooms are provided in clusters, ve

percent (5%) but at least one room in each

cluster must comply. Some commenters

stated that clothing and retail stores would

have to expand and recongure accessible

dressing, tting and locker rooms to meet

the changed provision for clear oor space

alongside the end of the bench. Commenters

explained that meeting the new requirement

would result in a loss of sales and inventory

space. Other commenters also expressed

opposition to the changed requirement in

locker rooms for similar reasons.

The Department reminds the commenters

that the requirements in the 2010 Standards

for the clear oor space to be beside the

short axis of the bench in an accessible

dressing, tting, or locker room apply onlyto new construction and alterations. The

requirements for alterations in the 2010

Standards at section 202.3 do not include

the requirement from the 1991 Standards

at section 4.1.6(1)(c) that if alterations to






single elements, when considered together,

amount to an alteration of a room or space

in a building or facility, the entire space shall

be made accessible. Therefore, under the

2010 Standards, the alteration requirements

only apply to specic elements or spaces that

are being altered. So providing the clear oor

space at the end of the bench as required by

the 2010 Standards instead of in front of the

bench as is allowed by the 1991 Standards

would only be required when the bench in the

accessible dressing room is altered or when

the entire dressing room area is altered.

224 and 806 Transient Lodging Guest

Rooms

Scoping. The minimum number of guest

rooms required to be accessible in transient

lodging facilities is covered by section 224 of

the 2010 Standards. Scoping requirements

for guest rooms with mobility features

and guest rooms with communication

features are addressed at section 224.2

and section 224.4, respectively. Under the

1991 Standards all newly constructed guest

rooms with mobility features must provide

communication features. Under the 2010

Standards, in section 224.5, at least one

guest room with mobility features must also

provide communication features. Additionally,

not more than ten percent (10%) of the guest

rooms required to provide mobility featuresand also equipped with communication

features can be used to satisfy the minimum

number of guest rooms required to provide

communication features.

Some commenters opposed requirements

for guest rooms accessible to individuals

with mobility disabilities stating that statistics

provided by the industry demonstrate that all

types of accessible guest rooms are unused.

They further claimed that the requirements

of the 2010 Standards are too burdensome

to meet in new construction, and that the

requirements will result in a loss of living

space in places of transient lodging. Other

commenters urged the Department to

increase the number of guest rooms required

to be accessible. The number of guest

rooms accessible to individuals with mobilitydisabilities and the number accessible to

persons who are deaf or who are hard of

hearing in the 2010 Standards are consistent

with the 1991 Standards and with the

IBC. The Department continues to receive

complaints about the lack of accessible guest

rooms throughout the country. Accessible

guest rooms are used not only by individuals

using mobility devices such as wheelchairs

and scooters, but also by individuals with

other mobility disabilities including persons

who use walkers, crutches, or canes.

Data provided by the Disability Statistics

Center at the University of California, San

Francisco demonstrated that the number

of adults who use wheelchairs has been

increasing at the rate of six percent (6%) per

year from 1969 to 1999; and by 2010, it wasprojected that two percent (2%) of the adult

population would use wheelchairs. In addition

to persons who use wheelchairs, three

percent (3%) of adults used crutches, canes,

walkers, and other mobility devices in 1999;






and the number was projected to increase

to four percent (4%) by 2010. Thus, in 2010,

up to six percent (6%) of the population may

need accessible guest rooms.

Dispersion. The 2010 Standards, in

section 224.5, set scoping requirements

for dispersion in facilities covered by the

transient lodging provisions. This section

covers guest rooms with mobility features

and guest rooms with communication

features and applies in new construction

and alterations. The primary requirement

is to provide choices of types of guestrooms, number of beds, and other amenities

comparable to the choices provided to other

guests. An advisory in section 224.5 provides

guidance that “factors to be considered in

providing an equivalent range of options may

include, but are not limited to, room size, bed

size, cost, view, bathroom xtures such as

hot tubs and spas, smoking and nonsmoking,

and the number of rooms provided.”

Commenters asked the Department to

clarify what is meant by various terms used

in section 224.5 such as “classes,” “types,”

“options,” and “amenities.” Other commenters

asked the Department to clarify and simplify

the dispersion requirements set forth in

section 224.5 of the 2010 Standards, in

particular the scope of the term “amenities.”

One commenter expressed concern thatviews, if considered an amenity, would further

complicate room categories and force owners

and operators to make an educated guess.

Other commenters stated that views should

only be a dispersion criteria if view is a factor

for pricing room rates.

These terms are not to be considered terms

of art, but should be used as in their normal

course. For example, “class” is dened

by Webster’s Dictionary as “a division by

quality.” “Type” is dened as “a group of

* * * things that share common traits or

characteristics distinguishing them as an

identiable group or class.” Accordingly, these

terms are not intended to convey different

concepts, but are used as synonyms. Inthe 2010 Standards, section 224.5 and its

advisory require dispersion in such a varied

range of hotels and lodging facilities that the

Department believes that the chosen terms

are appropriate to convey what is intended.

Dispersion required by this section is not

“one size ts all” and it is imperative that

each covered entity consider its individual

circumstance as it applies this requirement.

For example, a facility would consider

view as an amenity if some rooms faced

mountains, a beach, a lake, or other scenery

that was considered to be a premium. A

facility where view was not marketed or

requested by guests would not factor the

view as an amenity for purposes of meeting

the dispersion requirement.

Section 224.5 of the 2010 Standards requiresthat guest rooms with mobility features and

guest rooms with communication features

“shall be dispersed among the various

classes of guest rooms, and shall provide

choices of types of guest rooms, number of






beds, and other amenities comparable to the

choices provided to other guests. When the

minimum number of guest rooms required is

not sufcient to allow for complete dispersion,

guest rooms shall be dispersed in the

following priority: guest room type, number of

beds and amenities.”

This general dispersion requirement is

intended to effectuate Congress’ directive

that a percentage of each class of hotel

rooms is to be fully accessible to persons

with disabilities. See H.R. Rep. No. 101-485

(II) at 391. Accordingly, the promise of the ADA in this instance is that persons with

disabilities will have an equal opportunity to

benet from the various options available to

hotel guests without disabilities, from single

occupancy guest rooms with limited features

(and accompanying limited price tags) to

luxury suites with lavish features and choices.

The inclusion of section 224.5 of the 2010

Standards is not new. Substantially similar

language is contained in section 9.1.4 of the

1991 Standards.

Commenters raised concerns that the factors

included in the advisory to section 224.5 of

the 2010 Standards have been expanded.

The advisory provides: “[f]actors to be

considered in providing an equivalent range

of options may include, but are not limited

to, room size, bed size, cost, view, bathroomxtures such as hot tubs and spas, smoking

and nonsmoking, and the number of rooms

provided.”

As previously discussed, the advisory

materials provided in the 2010 Standards

are meant to be illustrative and do not set

out specic requirements. In this particular

instance, the advisory materials for section

224.5 set out some of the common types of

amenities found at transient lodging facilities,

and include common sense concepts such

as view, bathroom xtures, and smoking

status. The intention of these factors is to

indicate to the hospitality industry the sorts

of considerations that the Department, in its

enforcement efforts since the enactment of

the ADA, has considered as amenities thatshould be made available to persons with

disabilities, just as they are made available to

guests without disabilities.

Commenters offered several suggestions for

addressing dispersion. One option included

the exibility to use an equivalent facilitation

option similar to that provided in section

9.1.4(2) of the 1991 Standards.

The 2010 Standards eliminated all specic

references to equivalent facilitation. Since

Congress made it clear that each class of

hotel room is to be available to individuals

with disabilities, the Department declines to

adopt such a specic limitation in favor of the

specic requirement for new construction and

alterations found in section 224.5 of the 2010

Standards.

In considering the comments of the

hospitality industry from the ANPRM and

the Department’s enforcement efforts

in this area, the Department sought






comment in the NPRM on whether the

dispersion requirements should be applied

proportionally, or whether the requirements

of section 224.5 of the 2010 Standards would

be complied with if access to at least one

guest room of each type were to be provided.

One commenter expressed concern about

requiring different guest room types to be

proportionally represented in the accessible

guest room pool as opposed to just having

each type represented. Some commenters

also expressed concern about accessible

guest rooms created in pre-1993 facilitiesand they requested that such accessible

guest rooms be safe harbored just as they

are safe harbored under the 1991 Standards.

In addition, one commenter requested that

the proposed dispersion requirements in

section 224.5 of the 2010 Standards not be

applied to pre-1993 facilities even when they

are altered. Some commenters also offered

a suggestion for limitations to the dispersion

requirements as an alternative to safe

harboring pre-1993 facilities. The suggestion

included: (1) Guest rooms’ interior or exterior

footprints may remain unchanged in order

to meet the dispersion requirements; (2)

Dispersion should only be required among

the types of rooms affected by an alteration;

and (3) Subject to (1) and (2) above and

technical feasibility, a facility would need to

provide only one guest room in each guestroom type such as single, double and suites.

One commenter requested an exception to

the dispersion criteria that applies to both

existing and new multi-story timeshare

facilities. This requested exception waives

dispersion based on views to the extent that

up to eight units may be vertically stacked in

a single location.


sets scoping requirements for alterations to

transient lodging guest rooms. The advisory

to section 224.1.1 further explains that

compliance with 224.5 is more likely to be

achieved if all of the accessible guest rooms

are not provided in the same area of the

facility, when accessible guest rooms are

added as a result of subsequent alterations.

Some commenters requested a specic

exemption for small hotels of 300 or fewer

guest rooms from dispersion regarding

smoking rooms. The ADA requires that

individuals with disabilities be provided with

the same range of options as persons without

disabilities, and, therefore, the Department

declines to add such an exemption. It is

noted, however, that the existence of this

language in the advisory does not require a

place of transient lodging that does not offer

smoking guest rooms at its facility to do so

only for individuals with disabilities.

Guest Rooms with Mobility Features.

Scoping provisions for guest rooms with

mobility features are provided in section

224.2 of the 2010 Standards. Scoping

requirements for alterations are included in224.1.1. These scoping requirements in the

2010 Standards are consistent with the 1991

Standards.






One commenter expressed opposition to

the new scoping provisions for altered guest

rooms, which, according to the commenter,

require greater numbers of accessible guest

rooms with mobility features.


provides scoping requirements for alterations

to guest rooms in existing facilities. Section

224.1.1 modies the scoping requirements

for new construction in section 224 by limiting

the application of section 224 requirements

only to those guest rooms being altered or

added until the number of such accessibleguest rooms complies with the minimum

number required for new construction in

section 224.2 of the 2010 Standards. The

minimum required number of accessible

guest rooms is based on the total number

of guest rooms altered or added instead of

the total number of guest rooms provided.

These requirements are consistent with

the requirements in the 1991 Standards.

Language in the 2010 Standards claries

the provision of section 104.2 of the 2010

Standards which requires rounding up values

to the next whole number for calculations of

percentages in scoping.

Guest Rooms with Communication

Features. The revisions at section 224.4

of the 2010 Standards effect no substantive

change from the 1991 Standards with respectto the number of guest rooms required

to provide communication features. The

scoping requirement is consolidated into a

single table, instead of appearing in three

sections as in the 1991 Standards. The

revised provisions also limit the overlap

between guest rooms required to provide

mobility features and guest rooms required

to provide communication features. Section

224.5 of the 2010 Standards requires that

at least one guest room providing mobility

features must also provide communications

features. At least one, but not more than ten

percent (10%), of the guest rooms required to

provide mobility features can also satisfy the

minimum number of guest rooms required to

provide communication features.

Commenters suggested that the

requirements for scoping and dispersion

of guest rooms for persons with mobility

impairments and guest rooms with

communication features are too complex for

the industry to effectively implement.

The Department believes the requirements

for guest rooms with communications

features in the 2010 Standards clarify the

requirements necessary to provide equal

opportunity for travelers with disabilities.

Additional technical assistance will be made

available to address questions before the rule

goes into effect.

Visible Alarms in Guest Rooms with

Communication Features. The 1991

Standards at sections 9.3.1 and 4.28.4require transient lodging guest rooms with

communication features to provide either

permanently installed visible alarms that are

connected to the building re alarm system

or portable visible alarms that are connected






to a standard 110-volt electrical outlet and

are both activated by the building re alarm

system and provide a visible alarm when the

single station smoke detector is activated.

Section 215.4 of the 2010 Standards no

longer includes the portable visible alarm

option and instead requires that transient

lodging guest rooms with communication

features be equipped with a re alarm

system which includes permanently installed

audible and visible alarms in accordance with

NFPA 72 National Fire Alarm Code (1999

or 2002 edition). Such guest rooms with

communication features are also required bysection 806.3.2 of the 2010 Standards to be

equipped with visible notication devices that

alert room occupants of incoming telephone

calls and a door knock or bell.

The 2010 Standards add a new exception for

alterations to existing facilities that exempts

existing re alarm systems from providing

visible alarms, unless the re alarm system

itself is upgraded or replaced, or a new re

alarm system is installed. Transient lodging

facilities that alter guest rooms are not

required to provide permanently installed

visible alarms complying with the NFPA 72 if

the existing re alarm system has not been

upgraded or replaced, or a new re alarm

system has not been installed.

Commenters representing small providersof transient lodging raised concerns about

the proposed changes to prohibit the use

of portable visible alarms used in transient

lodging guest rooms. These commenters

recommended retaining requirements that

allow the use of portable visible alarms.

Persons who are deaf or hard of hearing

have reported that portable visible alarms

used in transient lodging guest rooms

are decient because the alarms are not

activated by the building re alarm system,

and the alarms do not work when the building

power source goes out in emergencies.

The 2010 Standards are consistent with the

model building, re, and life safety codesas applied to newly constructed transient

lodging facilities. One commenter sought

conrmation of its understanding of visible

alarm requirements from the Department.

This commenter interpreted the exception

to section 215.1 of the 2010 Standards and

the Department’s commentary to the NPRM

to mean that if a transient lodging facility

does not have permanently installed visible

alarms in its communication accessible guest

rooms, it will not be required to provide such

alarms until such time that its re alarm

system is upgraded or replaced, or a new

re alarm system is installed. In addition, this

commenter also understood that, if a hotel

already has permanently installed visible

alarms in all of its mobility accessible guest

rooms, it would not have to relocate such

visible alarms and other communicationfeatures in those rooms to other guest

rooms to comply with the ten percent (10%)

overlap requirement until the alarm system is

upgraded or replaced.






This commenter’s interpretation and

understanding are consistent with the

Department’s position in this matter. Section


guest rooms required to have communication

features be equipped with a re alarm system

complying with section 702. Communication

accessible guest rooms are required to

have all of the communication features

described in section 806.3 of the 2010

Standards including a re alarm system

which provides both audible and visible

alarms. The exception to section 215.1 of

the 2010 Standards, which applies only tore alarm requirements for guest rooms with

communication features in existing facilities,

exempts the visible alarm requirement until

such time as the existing re alarm system

is upgraded or replaced, or a new re alarm

system is installed. If guest rooms in existing

facilities are altered and they are required

by section 224 of the 2010 Standards to

have communication features, such guest

rooms are required by section 806.3 to have

all other communication features including

notication devices.

Vanity Counter Space. Section 806.2.4.1

of the 2010 Standards requires that if vanity

countertop space is provided in inaccessible

transient lodging guest bathrooms,

comparable vanity space must be provided in

accessible transient lodging guest bathrooms.

A commenter questioned whether in

existing facilities vanity countertop space

may be provided through the addition of a

shelf. Another commenter found the term

“comparable” vague and expressed concern

about confusion the new requirement would

cause. This commenter suggested that the

phrase “equal area in square inches” be used

instead of comparable vanity space.

In some circumstances, the addition of

a shelf in an existing facility may be a

reasonable way to provide a space for

travelers with disabilities to use their toiletries

and other personal items. However, this is a

determination that must be made on a case-

by-case basis. Comparable vanity countertop

space need not be one continuous surfaceand need not be exactly the same size as the

countertops in comparable guest bathrooms.

For example, accessible shelving within

reach of the lavatory could be stacked to

provide usable surfaces for toiletries and

other personal items.

Shower and Sauna Doors in Transient

Lodging Facilities. Section 9.4 of the 1991

Standards and section 206.5.3 of the 2010

Standards both require passage doors in

transient lodging guest rooms that do not

provide mobility features to provide at least

32 inches of clear width. Congress directed

this requirement to be included so that

individuals with disabilities could visit guests

in other rooms. See H. Rept. 101-485, pt. 2,

at 118 (1990); S. Rept. 101-116, at 70 (1989).

Section 224.1.2 of the 2010 Standards addsa new exception to clarify that shower and

sauna doors in such inaccessible guest

rooms are exempt from the requirement for

passage doors to provide at least 32 inches

of clear width. Two commenters requested






of an accessible route. The 2010 Standards

add a new scoping requirement that permits

platform lifts to be used to connect levels

within transient lodging guest rooms and

dwelling units with mobility features.

806 Transient Lodging Guest Rooms

In the NPRM, the Department included oor

plans showing examples of accessible guest

rooms and bathrooms designs with mobility

features to illustrate how compliance with

the 2010 Standards could be accomplished

with little or no additional space compared todesigns that comply with the 1991 Standards.

Commenters noted that the Department’s

plans showing accessible transient lodging

guest rooms compliant with the 2010

Standards were not common in the transient

lodging industry and also noted that the plans

omitted doors at sleeping room closets.

The Department agrees that the conguration

of the accessible bathrooms is somewhat

different from past designs used by the

industry, but this was done to meet the

requirements of the 2010 Standards. The

plans were provided to show that, with some

redesign, the 2010 Standards do not normally

increase the square footage of an accessible

sleeping room or bathroom with mobility

features in new construction. The Departmenthas also modied several accessible guest

room plans to show that doors can be

installed on closets and comply with the 2010

Standards.

that saunas and steam rooms in existing

facilities be exempt from the section 224.1.2

requirement and that the requirement be

made applicable to new construction only.

The exemption to the section 224.1.2

requirement for a 32-inch wide clearance

at doors to shower and saunas applies

only to those showers and saunas in guest

rooms which are not required to have

mobility features. Showers and saunas in

other locations, including those in common

use areas and guest rooms with mobility

features, are required to comply with the32-inch clear width standard as well as

other applicable accessibility standards.

Saunas come in a variety of types: portable,

pre-built, pre-cut, and custom-made. All

saunas except for custom-made saunas

are made to manufacturers’ standard

dimensions. The Department is aware that

creating the required 32-inch clearance

at existing narrower doorways may not

always be technically feasible. However,

the Department believes that owners and

operators will have an opportunity to provide

the required doorway clearance, unless

doing so is technically infeasible, when an

alteration to an existing sauna is undertaken.

Therefore, the Department has retained

these requirements.

Platform Lifts in Transient Lodging GuestRooms and Dwelling Units. The 1991

Standards, at section 4.1.3(5), exception 4,

and the 2010 Standards, at sections 206.7

and 206.7.6, both limit the locations where

platform lifts are permitted to be used as part






A commenter stated that the Department’s

drawings suggest that the fan coil units for

heat and air conditioning are overhead,

while the typical sleeping room usually

has a vertical unit, or a packaged terminal

air conditioning unit within the room. The

Department’s drawings are sample plans,

showing the layout of the space, relationship

of elements to each other, and required

clear oor and turning spaces. It was not the

intent of the Department to provide precise

locations for all elements, including heating

and air conditioning units.

Commenters noted that in guest rooms with

two beds, each bed was positioned close

to a wall, reducing access on one side.

Another commenter stated that additional

housekeeping time is needed to clean the

room when beds are placed closer to walls.

The 2010 Standards require that, when two

beds are provided, there must be at least

36 inches of clear space between the beds.

The plans provided in the NPRM showed

two bed arrangements with adequate clear

width complying with the 1991 Standards

and the 2010 Standards. Additional space

can be provided on the other side of the beds

to facilitate housekeeping as long as the

clear oor space between beds is at least 36

inches wide.

Commenters stated that chases in sleepingroom bathrooms that route plumbing and

other utilities can present challenges when

modifying existing facilities. In multi-story

facilities, relocating or re-routing these

elements may not be possible, limiting

options for providing access. The Department

recognizes that relocating mechanical

chases in multi-story facilities may be difcult

or impossible to accomplish. While these

issues do not exist in new facilities, altered

existing facilities must comply with the 2010

Standards to the extent that it is technically

feasible to do so. When an alteration

cannot fully comply because it is technically

infeasible to do so, the alteration must still

be designed to comply to the greatest extent

feasible.

Commenters noted that on some of theDepartment’s plans where a vanity is located

adjacent to a bathtub, the vanity may require

more maintenance due to exposure to water.

The Department agrees that it would be

advisable that items placed next to a bathtub

or shower be made of materials that are not

susceptible to water damage.




Transient Lodging Guest Room Floor Plans and Related Text

The Department has included the following oor plans showing application of the

requirements of the 2010 Standards without signicant loss of guest room living

space in transient lodging compared to the 1991 Standards.




Plan 1A: 13-Foot Wide Accessible Guest Room

This drawing shows an accessible 13-foot wide guest room with features that comply with the 2010 Standards.

Features include a standard bathtub with a seat, comparable vanity, clothes closet with swinging doors, and door

connecting to adjacent guest room. Furnishings include a king bed and additional seating.

The following accessible features are provided in the

bathroom:

• Comparable vanity counter top space (section

806);

• Bathtub with a lavatory at the control end (section

607.2);

• Removable bathtub seat (section 607.3);

• Clearance in front of the bathtub extends its fulllength and is 30 inches wide min. (section 607.2);

• Recessed bathtub location permits shorter rear

grab bar at water closet (section 604.5.2);

• Circular turning space in room (section 603.2.1);

• Required clear oor spaces at xtures and turning

space overlap (section 603.2.2);

• Turning space includes knee and toe clearance at

lavatory (section 304.3);

• Water closet clearance is 60 inches at back wall

and 56 inches deep (section 604.3);

• Centerline of the water closet at 16-18 inches fromside wall (section 604.2); and

• No other xtures or obstructions located within

required water closet clearance (section 604.3).


living area:

• T-shaped turning space (section 304.3.2);

• Accessible route (section 402);

• Clear oor space on both sides of the bed (section

806.2.3);

• Maneuvering clearances at all doors (section

404.2);

• Accessible operable window (section 309); and

• Accessible controls for the heat and air

conditioning (section 309).

13’-0”

7’-6”

8 ’ - 2 ”

1 5 ’ - 4 ”




Plan 1B: 13-Foot Wide Accessible Guest Room


bathroom:


806);

• Bathtub with a lavatory at the control end (section

607.2);


• Clearance in front of the bathtub extends its fulllength and is 30 inches wide min. (section 607.2);

• Recessed bathtub location permits shorter rear

grab bar at water closet (section 604.5.2);








• Centerline of the water closet at 16-18 inches from

side wall (section 604.2); and


required water closet clearance (section 604.3);


living area:



• Clear oor space between beds (section 806.2.3);


404.2);





Features include a standard bathtub with a seat, comparable vanity, clothes closet with swinging doors, and door

connecting to adjacent guest room. Furnishings include two beds.

13’-0”

7’-6”

8 ’ - 2 ”

1 5 ’ -

4 ”






Features include a standard roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to

adjacent guest room. Furnishings include a king bed and additional seating.


bathroom:


806);

• Standard roll-in type shower with folding seat

(section 608.2.2);

• Recessed roll-in shower location permits shorter

rear grab bar at water closet (section 604.5.2);• Clear oor space adjacent to shower min. 30

inches wide by 60 inches long (section 608.2.2);













living area:




806.2.3);


404.2);




13’-0”

7’-6”

8 ’ - 2 ”

1 5 ’ -

4 ”






Features include an alternate roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to

adjacent guest room. Furnishings include two beds.


bathroom:


806);

• Alternate roll-in type shower with folding seat is 36

inches deep and 60 inches wide (section 608.2.3);

• Alternate roll-in shower has a 36-inch wide entry

at one end of the long side of the compartment

(section 608.2.3);

• Recessed alternate roll-in shower location permits

shorter rear grab bar at water closet (section

604.5.2);












living area:




• Maneuvering clearances at all doors (section404.2);




13’-0”

8’-0”

8 ’ - 2 ”

1 5 ’ -

4 ”

2’-10”door

2’-8”

min.






bathroom:


806);

• Bathtub (section 607.2);


• Clearance in front of the bathtub extends its full

length and is 30 inches wide min. (section 607.2);

• Recessed lavatory with vanity countertop permits


604.5.2);













living area:




806.2.3);






Features include a bathtub with a seat, comparable vanity, open clothes closet, and door connecting to adjacent

guest room. Furnishings include a king bed and additional seating.

12’-0”

7’-0” 2’-10”

door

9

’ - 3 ”

1 4 ’ - 3 ”






Features include a standard roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to



bathroom:


806);


(section 608.2.2);

• Recessed lavatory with vanity counter top permits

shorter rear grab bar at water closet (section604.5.2);

• Clear oor space adjacent to shower min. 30

inches wide by 60 inches long (section 608.2.2);













living area:





404.2);




12’-0”

7’-0” 2’-10”

door

8

’ - 1 1 ”

1 4 ’ - 7

”






Features include a standard roll-in shower with a seat, comparable vanity, clothes closet with swinging doors, and

door connecting to adjacent guest room. Furnishings include a king bed and additional seating.


bathroom:


806);


(section 608.2.2);

• Clear oor space adjacent to shower min. 30

inches wide by 60 inches long (section 608.2.2);• Recessed roll-in shower location permits shorter

rear grab bar at water closet (section 604.5.2);












• 30-inch wide by 48-inch long minimum clear oor

space provided beyond the arc of the swing of the

entry door (section 603.2.3 exception 2).


living area:



• Clear oor space on both sides of the bed (section806.2.3);


404.2);




13’-0”

7’-6”

8 ’ - 2 ”

1 5 ’ -

4 ”






Features include an alternate roll-in shower with a seat, comparable vanity, wardrobe, and door connecting to



bathroom:


806);

• Alternate roll-in type shower with folding seat is 36

inches deep and 60 inches wide (section 608.2.3);

• Alternate roll-in shower has a 36-inch wide entry

at one end of the long end of the compartment(section 608.2.3);

• Recessed alternate roll-in shower location permits


604.5.2);












living area:








13’-0”

8’-0”

8 ’ - 2 ”

1 5 ’ -

4 ”

2’-10”door






Features include a transfer shower, comparable vanity, clothes closet with swinging door, and door connecting to

adjacent guest room. Furnishings include a king bed and additional seating.


bathroom:


806);

• Transfer shower (section 603.2);

• Shower seat (section 610.3);

• Clearance in front of the shower extends beyond

the seat and is 36 inches wide min. (section607.2);

• Recessed transfer shower location permits shorter

rear grab bar at water closet (section 604.5.2);






• Centerline of the water closet at 16 inches from


• No other xtures or obstructions located withinrequired water closet clearance (section 604.3).


living area:

• Circular turning space (section 304.3.2);



806.2.3);


404.2);




13’-0”

8’-0”

7 ’ - 8 ”

1 5 ’ -

1 0 ”

2’-10”door






Features include a transfer shower, comparable vanity, open clothes closet, and door connecting to adjacent

guest room. Furnishings include two beds.


bathroom:


806);





• Lavatory with vanity counter top recessed to

permit shorter rear grab bar at water closet

(section 604.5.2);

• T-shaped turning space in room (section 603.2.1);










living area:





404.2);• Accessible operable window (section 229); and



13’-0”

8’-0”

8 ’ - 0 ”

1 5 ’ - 6 ”

2’-10”door






Features include a transfer shower, water closet length (rim to rear wall) 24 inches maximum, comparable vanity,

clothes closet with swinging door, and door connecting to adjacent guest room. Furnishings include a king bedand additional seating.


bathroom:


806);







604.5.2);

• T-shaped turning space in room (section 603.2.1);










living area:




806.2.3);


404.2);




12’-0”

6’-9”

8

’ - 1 1 ”

1 4 ’ - 7

”






Features include a transfer shower, water closet length (rim to rear wall) 24 inches maximum, comparable vanity,

wardrobe, and door connecting to adjacent guest room. Furnishings include two beds.


bathroom:


806);







604.5.2);











living area:

• Circular turning space (section 304.3.2);




404.2);




12’-0”

6’-9”

8

’ - 1 1 ”

1 4 ’ - 7

”






225 and 811 Storage

Section 225 of the 2010 Standards provides

that where storage is provided in accessible

spaces, at least one of each type shall

comply with the 2010 Standards. Self-

service shelving is required to be on an

accessible route, but is not required to

comply with the reach range requirements.

These requirements are consistent with the

1991 Standards.

Section 225.3 adds a new scoping

requirement for self-storage facilities.Facilities with 200 or fewer storage spaces

will be required to make at least ve percent

(5%) of the storage spaces accessible.

Facilities with more than 200 storage spaces

will be required to provide ten accessible

storage spaces, plus two percent (2%) of the

total storage spaces over 200.

Sections 225.2.1 and 811 of the 2010

Standards require lockers to meet

accessibility requirements. Where lockers are

provided in clusters, ve percent (5%) but

at least one locker in each cluster will have

to comply. Under the 1991 Standards, only

one locker of each type provided must be

accessible.

Commenters recommended that the

Department adopt language requiring publicaccommodations to provide access to all self-

service shelves and display areas available

to customers. Other commenters opposed

this requirement as too burdensome to retail

and other entities and claimed that signicant

revenue would be lost if this requirement

were to be implemented.

Other commenters raised concerns that

section 225.2.2 of the 2010 Standards

scopes only self-service shelving whereas

section 4.1.3(12)(b) of the 1991 Standards

applies to both “shelves or display units.”

Although “display units” were not included

in the 2010 Standards under the belief that

displays are not to be touched and thereforeby denition cannot be “self-service,” both

the 2010 Standards and the 1991 Standards

should be read broadly to apply to all types of

shelves, racks, hooks, and similar self-service

merchandising ttings, including self-service

display units. Such xtures are permitted to

be installed above or below the reach ranges

possible for many persons with disabilities

so that space available for merchandising is

used as efciently as possible.

226 and 902 Dining Surfaces and Work

Surfaces

Section 226.1 of the 2010 Standards require

that where dining surfaces are provided for

the consumption of food or drink, at least

ve percent (5%) of the seating spaces

and standing spaces at the dining surfacescomply with section 902. Section 902.2

requires the provision of accessible knee and

toe clearance.






Commenters stated that basing accessible

seating on seating spaces and standing

spaces potentially represents a signicant

increase in scoping, particularly given the

ambiguity in what represents a “standing

space” and urged a return to the 1991

Standard of requiring accessible seating

based on xed dining tables. The scoping

change merely takes into account that

tables may vary in size so that basing

the calculation on the number of tables

rather than on the number of individuals

that may be accommodated by the tables

could unnecessarily restrict opportunitiesfor persons with disabilities. The revised

scoping permits greater exibility by allowing

designers to disperse accessible seating

and standing spaces throughout the dining

area. Human factors data, which is readily

available to designers, provides information

about the amount of space required for both

eating and drinking while seated or standing.

227 and 904 Sales and Service

Check-Out Aisles and Sales and Service

Counters. The 1991 Standards, at section

7.2, and the 2010 Standards, at section

904.4, contain technical requirements

for sales and service counters. The 1991

Standards generally require sales and

service counters to provide an accessible

portion at least 36 inches long and nohigher than 36 inches above the nish

oor. The nondiscrimination requirements

of the ADA regulations require the level of

service provided at the accessible portion

of any sales and service counter to be the

same as the level of service provided at the

inaccessible portions of the counter.

The 2010 Standards specify different lengths

for the accessible portion of sales and service

counters based on the type of approach

provided. Where a forward approach is

provided, the accessible portion of the

counter must be at least 30 inches long and

no higher than 36 inches, and knee and toe

space must be provided under the counter.

The requirement that knee and toe space

be provided where only clear oor space fora forward approach to a sales and service

counter is provided is not a new requirement.

It is a clarication of the ongoing requirement

that part of the sales and service counter be

accessible. This requirement applies to the

entire accessible part of sales and service

counters and requires that the accessible

clear oor or ground space adjacent to those

counters be kept clear of merchandise,

equipment, and other items so that the

accessible part of the counter is readily

accessible to and usable by individuals

with disabilities. The accessible part of the

counter must also be staffed and provide an

equivalent level of service as that provided to

all customers.

Where clear oor space for a parallel

approach is provided, the accessible portionof the counter must be at least 36 inches

long and no higher than 36 inches above the

nish oor. A clear oor or ground space that

is at least 48 inches long x 30 inches wide






and toe clearance requirements will cause a

reduction in the sales and inventory space at

check-out aisles and other sales and service

counters.

Both the 1991 and the 2010 Standards

permit covered entities to determine whether

they will provide a forward or a parallel

approach to sales and service counters. So

any facility that does not wish to provide the

knee or toe clearance required for a front

approach to such a counter may avoid that

option. However, the Department believes

that permitting a forward approach withoutrequiring knee and toe clearance is not

adequate to provide accessibility because the

person using a wheelchair will be prevented

from coming close enough to the counter

to see the merchandise or to transact

business with a degree of convenience

that is comparable to that provided to other

customers.

A parallel approach to sales and service

counters also can provide the accessibility

required by the 2010 Standards. Individuals

using wheelchairs can approach sales

and service counters from the side, and,

assuming the necessary elements, features,

or merchandise necessary to complete a

business transaction are within the reach

range requirements for a side approach, the

needs of individuals with disabilities can bemet effectively.

Section 227 of the 2010 Standards claries

the requirements for food service lines.

Queues and waiting lines serving counters

must be provided positioned for a parallel

approach adjacent to the 36-inch minimum

length of counter.

Section 904.4 of the 2010 Standards includes

an exception for alterations to sales and

service counters in existing facilities. It

permits the accessible portion of the counter

to be at least 24 inches long, where providing

a longer accessible counter will result in a

reduction in the number of existing counters

at work stations or existing mailboxes,

provided that the required clear oor or

ground space is centered on the accessiblelength of the counter.

Section 904.4 of the 2010 Standards also

claries that the accessible portion of the

counter must extend the same depth as

the sales or service counter top. Where

the counter is a single-height counter, this

requirement applies across the entire depth

of the counter top. Where the counter is a

split-height counter, this requirement applies

only to the customer side of the counter top.

The employee-side of the counter top may be

higher or lower than the customer-side of the

counter top.


Department consider a regulatory alternative

exempting small retailers from the new

knee and toe clearance requirement andretaining existing wheelchair accessibility

standards for sales and service counters.

These commenters believed that the knee






or check-out aisles, including those for food

service, must be accessible to individuals

with disabilities.

229 Windows

A new requirement at section 229.1 of the

2010 Standards provides that if operable

windows are provided for building users, then

at least one window in an accessible space

must be equipped with controls that comply

with section 309.

Commenters generally supported thisprovision but some commenters asked

whether the maximum ve-pounds (5 lbs.)

of force requirement of section 309 applies

to the window latch itself or only to the

force required to open the window. Section

309 applies to all controls and operating

mechanisms, so the latch must comply with

the requirement to operate with no more than

ve pounds of force (5 lbf).

230 and 708 Two-Way Communication

Systems

New provisions of the 2010 Standards at

sections 230.1 and 708 require two-way

communications systems to be equipped with

visible as well as audible signals.

231 and 808 Judicial Facilities andCourtrooms

Section 231 of the 2010 Standards adds

requirements for accessible courtrooms,

holding cells, and visiting areas.

Accessible Courtroom Stations. Sections

231.2, 808, 304, 305, and 902 of the 2010

Standards provide increased accessibility at

courtroom stations. Clear oor space for a

forward approach is required for all courtroom

stations (judges’ benches, clerks’ stations,

bailiffs’ stations, deputy clerks’ stations, court

reporters’ stations, and litigants’ and counsel

stations). Other applicable specications

include accessible work surface heights and

toe and knee clearance.

Accessible Jury Boxes, Attorney Areas,

and Witness Stands. Section 206.2.4 of the2010 Standards requires, in new construction

and alterations, at least one accessible route

to connect accessible building or facility

entrances with all accessible spaces and

elements within the building or facility that

are connected by a circulation path unless

they are exempted by Exceptions 1 - 7 of

section 206.2.3. Advisory 206.2.4 Spaces

and Elements Exception 1 explains that the

exception allowing raised courtroom stations

to be used by court employees, such as

judge’s benches, to be adaptable does not

apply to areas of the courtroom likely to be

used by members of the public such as jury

areas, attorney areas, or witness stands.

These areas must be on an accessible route

at the time of initial construction or alteration.

Raised Courtroom Stations Not forMembers of the Public. Section 206.2.4,

Exception 1 of the 2010 Standards provides

that raised courtroom stations that are used

by judges, clerks, bailiffs, and court reporters

will not have to provide full vertical access






when rst constructed or altered if they are

constructed to be easily adaptable to provide

vertical accessibility.

One commenter suggested that a sufcient

number of accessible benches for judges with

disabilities, in addition to requiring accessible

witness stands and attorney areas, be

required. The Department believes that

the requirements regarding raised benches

for judges are easily adaptable to provide

vertical access in the event a judge requires

an accessible bench. Section 206.2.4 of

the 2010 Standards provides that raisedcourtroom stations used by judges and

other judicial staff do not have to provide

full vertical access when rst constructed or

altered as long as the required clear oor

space, maneuvering space, and electrical

service, where appropriate, is provided at the

time of new construction or can be achieved

without substantial reconstruction during

alterations.

A commenter asserted that there is nothing

inherent in clerks’ stations, jury boxes, and

witness stands that require them to be

raised. While it would, of course, be easiest

to provide access by eliminating height

differences among courtroom elements, the

Department recognizes that accessibility is

only one factor that must be considered in the

design process of a functioning courtroom.The need to ensure the ability of the judge to

maintain order, the need to ensure sight lines

among the judge, the witness, the jury, and

other participants, and the need to maintain

the security of the participants all affect

the design of the space. The Department

believes that the 2010 Standards have been

drafted in a way that will achieve accessibility

without unduly constraining the ability of a

designer to address the other considerations

that are unique to courtrooms.

Commenters argued that permitting

courtroom stations to be adaptable rather

than fully accessible at the time of new

construction likely will lead to discrimination

in hiring of clerks, court reporters, and other

court staff. The Department believes that the

provisions will facilitate, not hinder, the hiringof court personnel who have disabilities. All

courtroom work stations will be on accessible

routes and will be required to have all xed

elements designed in compliance with the

2010 Standards. Elevated work stations for

court employees may be designed to add

vertical access as needed. Since the original

design must provide the proper space and

electrical wiring to install vertical access, the

change should be easily accomplished.

232 Detention Facilities and Correctional

Facilities

Section 232 of the 2010 Standards

establishes requirements for the design and

construction of cells, medical care facilities,

and visiting areas in detention facilities and

in correctional facilities. Section 35.151(k) ofthe Department’s title II rule provides scoping

for newly constructed general holding cells

and general housing cells requiring mobility

features compliant with section 807.2 of

the 2010 Standards in a minimum of three






percent (3%) of cells, but no fewer than one

cell. Section 232.2 of the 2010 Standards

provides scoping for newly constructed cells

with communications features requiring a

minimum of two percent (2%) of cells, but

at least one cell, to have communication

features.

The Department’s title II rule at

§ 35.151(k) also species scoping for

alterations to detention and correctional

facilities. Generally a minimum of three

percent (3%), but no fewer than one, of the

total number of altered cells must complywith section 807.2 of the 2010 Standards

and be provided within each facility. Altered

cells with mobility features must be provided

in each classication level, including

administrative and disciplinary segregation,

each use and service area, and special

program. The Department notes that the

three percent (3%), but no fewer than one,

requirement is a minimum. As corrections

systems plan for new facilities or alterations,

the Department urges planners to include in

their population estimates a projection of the

numbers of inmates with disabilities so as to

have sufcient numbers of accessible cells to

meet inmate needs.

233 Residential Facilities

Homeless Shelters, Group Homes, andSimilar Social Service Establishments.

Section 233 of the 2010 Standards includes

specic scoping and technical provisions that

apply to new construction and alteration of

residential facilities. In the 1991 Standards

scoping and technical requirements for

homeless shelters, group homes, and similar

social service establishments were included

in section 9 Transient Lodging. These types

of facilities will be covered by section 233

of the 2010 Standards and by 28 CFR

35.151(e) and 36.406(d) and will be subject

to requirements for residential facilities

rather than the requirements for transient

lodging. This approach will harmonize federal

accessibility obligations under both the ADA

and section 504 of the Rehabilitation Act of

1973, as amended. In sleeping rooms with

more than 25 beds that are covered by§ 36.406(d) a minimum of ve percent (5%)

of the beds must have clear oor space

compliant with section 806.2.3 of the 2010

Standards. In large facilities with more than

50 beds, at least one roll-in shower compliant

with section 608.2.2 or section 608.2.3 of the

2010 Standards must be provided. Where

separate shower facilities are provided for

men and for women, at least one roll-in

shower must be provided for each gender.

Housing Operated By or On Behalf of

Places of Education. Housing at a place

of education includes: residence halls,

dormitories, suites, apartments, or other

places of residence operated by or on behalf

of places of education. Residence halls

or dormitories operated by or on behalf

of places of education are covered by theprovisions in sections 224 and 806 of the

2010 Standards. The Department has

included in the title III rule at § 36.406(e)

requirements that apply to housing at places

of education that clarify requirements for






One commenter supported the provisions of

section 804 of the 2010 Standards but sought

clarication whether this section applies

to residential units only, or to lodging and

ofce buildings as well. Section 212 makes

section 804 applicable to all kitchens and

kitchenettes in covered buildings.

Residential Facilities. Section 4.1.4(11)

of the UFAS contains scoping requirements

for the new construction of housing. Under

the 1991 title II regulation, state and local

governments had the option of complying

with the UFAS or the 1991 Standards. Afterthe compliance date for the 2010 Standards,

state and local governments will no longer

have the option of complying with the UFAS,

but will have to use the 2010 Standards for

new construction and alterations.

Sections 233.1, 233.2, 233.3, 233.3.1,

and 233.3.2 of the 2010 Standards

differentiate between entities subject

to the United States Department of

Housing and Urban Development (HUD)

regulations implementing section 504 of the

Rehabilitation Act of 1973 and entities not

subject to the HUD regulations. The HUD

regulations apply to recipients of federal

nancial assistance through HUD, and

require at least ve percent (5%) of dwelling

units in multi-family projects of ve or more

dwelling units to provide mobility featuresand at least two percent (2%) of the dwelling

units to provide communication features.

The HUD regulations dene a project unique

to its programs as “one or more residential

structures which are covered by a single

residence halls and dormitories and other

types of student housing. Requirements for

housing at a place of education covered by

the title II rule are included at § 35.151(f).

Kitchens and Kitchenettes. Section

4.34.2 of the UFAS requires a clear turning

space at least 60 inches in diameter or

an equivalent T-shaped turning space in

kitchens. Section 4.34.6 requires a clearance

between opposing base cabinets, counters,

appliances, or walls of at least 40 inches

except in a U-shaped kitchen where the

minimum clearance is 60 inches.


technical requirements for kitchens and

kitchenettes. Section 804.2.1 requires that

pass through kitchens, which have two

entries and counters, appliances, or cabinets

on two opposite sides or opposite a parallel

wall, provide at least 40 inches minimum

clearance. Section 804.2.2 requires that

U-shaped kitchens, which are enclosed

on three continuous sides, provide at least

60 inches minimum clearance between

all opposing base cabinets, countertops,

appliances, or walls within kitchen work

areas. Kitchens that do not have a cooktop

or conventional range are exempt from the

clearance requirements but still must provide

an accessible route.

If a kitchen does not have two entries, the

2010 Standards require the kitchen to have

60 inches minimum clearance between

the opposing base cabinets, counters,

appliances, or walls.






contract for federal nancial assistance or

application for assistance, or are treated as

a whole for processing purposes, whether or

not located on a common site.” To avoid any

potential conicts with the HUD regulations,

the 2010 Standards require residential

dwelling units subject to the HUD regulations

to comply with the scoping requirements in

the HUD regulations, instead of the scoping

requirements in the 2010 Standards.

For entities not subject to the HUD

regulations, the 2010 Standards require at

least ve percent (5%) of the dwelling unitsin residential facilities to provide mobility

features, and at least two percent (2%) of

the dwelling units to provide communication

features. The 2010 Standards dene facilities

in terms of buildings located on a site. The

2010 Standards permit facilities that contain

15 or fewer dwelling units to apply the

scoping requirements to all the dwelling units

that are constructed under a single contract,

or are developed as whole, whether or not

located on a common site.

Alterations to Residential Facilities.

Section 4.1.6 of the UFAS requires federal,

state, and local government housing to

comply with the general requirements for

alterations to facilities. Applying the general

requirements for alterations to housing can

result in partially accessible dwelling unitswhere single elements or spaces in dwelling

units are altered.

The 2010 Standards, at sections 202.3

Exception 3, 202.4, and 233.3, contain

specic scoping requirements for alterations

to dwelling units. Dwelling units that are not

required to be accessible are exempt from

the general requirements for alterations to

elements and spaces and for alterations to

primary function areas.

The scoping requirements for alterations to

dwelling units generally are based on the

requirements in the UFAS:

• Where a building is vacated for purposes

of alterations and has more than 15 dwell-

ing units, at least ve percent (5%) ofthe altered dwelling units are required to

provide mobility features and at least two

percent (2%) of the dwelling units are re-

quired to provide communication features.

• Where a bathroom or a kitchen is sub-

stantially altered in an individual dwelling

unit and at least one other room is also

altered, the dwelling unit is required to

comply with the scoping requirements for

new construction until the total number

of dwelling units in the facility required to

provide mobility features and communica-

tion features is met.

As with new construction, the 2010

Standards permit facilities that contain 15

or fewer dwelling units to apply the scoping

requirements to all the dwelling units thatare altered under a single contract, or are

developed as a whole, whether or not located

on a common site. The 2010 Standards also

permit a comparable dwelling unit to provide






mobility features where it is not technically

feasible for the altered dwelling unit to comply

with the technical requirements.

234 and 1002 Amusement Rides

New and Altered Permanently Installed

Amusement Rides. Section 234 of

the 2010 Standards sets out scoping

requirements and section 1002 sets out the

technical requirements for the accessibility

of permanently installed amusement rides.

These requirements apply to newly designed

and constructed amusement rides and usedrides when certain alterations are made.

A commenter raised concerns that smaller

amusement parks tend to purchase used

rides more frequently than new rides, and

that the conversion of a used ride to provide

the required accessibility may be difcult to

ensure because of the possible complications

in modifying equipment to provide

accessibility.

The Department agrees with this commenter.

The Department notes, however, that the

2010 Standards will require modications

to existing amusement rides when a ride’s

structural and operational characteristics

are altered to the extent that the ride’s

performance differs from that specied by the

manufacturer or the original design. Such anextensive alteration to an amusement ride

may well require that new load and unload

areas be designed and constructed. When

load and unload areas serving existing

amusement rides are newly designed and

constructed they must be level, provide

wheelchair turning space, and be on an

accessible route compliant with Chapter 4 of

the 2010 Standards except as modied by

section 1002.2 of the 2010 Standards.

Mobile or Portable Amusement Rides.


Standards exempts mobile or portable

amusement rides, such as those set up for

short periods of time at carnivals, fairs or

festivals, from having to comply with the

2010 Standards. However, even though the

mobile/portable ride itself is not subject tothe Standards, these facilities are still subject

to the ADA’s general requirement to ensure

that individuals with disabilities have an

equal opportunity to enjoy the services and

amenities of these facilities.

Subject to these general requirements,

mobile or portable amusement rides should

be located on an accessible route and the

load and unload areas serving a ride should

provide a level wheelchair turning space to

provide equal opportunity for individuals with

disabilities to be able to participate on the

amusement ride to the extent feasible.

One commenter noted that the exception

in Section 234.1 of the 2010 Standards for

mobile or portable amusement rides limits

the opportunities of persons with disabilitiesto participate on amusement rides because

traveling or temporary amusement rides

by their nature come to their customers’

town or a nearby town rather than the

customer having to go to them and so are






less expensive than permanent amusement

parks. While the Department understands the

commenter’s concerns, the Department notes

that most amusement rides are too complex

to be reasonably modied or re-engineered to

accommodate the majority of individuals with

disabilities and that additional complexities

and safety concerns are added when the

rides are mobile or portable.

A commenter asked that section 234 of

the 2010 Standards make clear that the

requirements for accessible routes include

the routes leading up to and including theloading and unloading areas of amusement

rides. Sections 206.2.9 and 1002.2 of the

2010 Standards clarify that the requirements

for accessible routes include the routes

leading up to and including the loading and

unloading areas of amusement rides.

A commenter requested that the nal rule

specically allow for wheelchair access

through the exit or other routes, or alternate

means of wheelchair access routes to

amusement rides. The commenter stated

that the concept of wheelchair access

through the exit or alternate routes was a

base assumption for the 2010 Standards.

The commenter noted that the concept is

apparent in the signage and load/unload

area provisions in Section 216.12 (“ * * *

where accessible unload areas also serve asaccessible load areas, signs indicating the

location of the accessible load and unload

areas shall be provided at entries to queues

and waiting lines”). The Department agrees

with the commenter that accessible load and

unload areas may be the same where signs

that comply with section 216.12 are provided.

Wheelchair Space or Transfer Seat or

Transfer Device. Sections 234.3 and 1002.4

- 1002.6 of the 2010 Standards provide

that each new and altered amusement ride,

except for mobile/portable rides and a few

additional excepted rides, will be required to

provide at least one type of access by means

of one wheelchair space or one transfer seat

or one transfer device (the design of the

transfer device is not specied).

Commenters urged the Department to revise

the requirements for wheelchair spaces

and transfer seats and devices because

most amusement rides are too complex to

be reasonably modied or re-engineered to

accommodate the majority of individuals with

disabilities. They argued that the experience

of amusement rides will be signicantly

reduced if the proposed requirements are

implemented.

The 2004 ADAAG, which the Department

adopted as part of the 2010 Standards, was

developed with the assistance of an advisory

committee that included representation from

the design staffs of major amusement venues

and from persons with disabilities. The

Department believes that the resulting 2004 ADAAG reected sensitivity to the complex

problems posed in adapting existing rides by

focusing on new rides that can be designed

from the outset to be accessible.






To permit maximum design exibility,

the 2010 Standards permit designers to

determine whether it is more appropriate

to permit individuals who use wheelchairs

to remain in their chairs on the ride, or to

provide for transfer access.

Maneuvering Space in Load and Unload

Areas. Sections 234.2 and 1002.3 of

the 2010 Standards require that a level

wheelchair turning space be provided at the

load and unload areas of each amusement

ride. The turning space must comply with

sections 304.2 and 304.3.

Signs Required at Waiting Lines to

Amusement Rides. Section 216.12 of the

2010 Standards requires signs at entries to

queues and waiting lines identifying type and

location of access for the amusement ride.

235 and 1003 Recreational Boating

Facilities

These sections require that accessible boat

slips and boarding piers be provided. Most

commenters approved of the requirements

for recreational boating facility accessibility

and urged the Department to keep regulatory

language consistent with those provisions.

They commented that the requirements

appropriately reect industry conditions.

Individual commenters and disabilityorganizations agreed that the 2010 Standards

achieve acceptable goals for recreational

boating facility access.

Accessible Route. Sections 206.2.10 and

1003.2 of the 2010 Standards require an

accessible route to all accessible boating

facilities, including boat slips and boarding

piers at boat launch ramps. Section 1003.2.1

provides a list of exceptions applicable to

structures such as gangways, transition

plates, oating piers, and structures

containing combinations of these elements

that are affected by water level changes.

The list of exceptions species alternate

design requirements applicable to these

structures which, because of water level

variables, cannot comply with the slope,cross slope, and handrail requirements for

xed ramps contained in sections 403.3,

405.2, 405.3, 405.6, and 405.7 of the 2010

Standards. Exceptions 3 and 4 in Section

1003.2.1, which permit a slope greater than

that specied in Section 405.2, are available

for structures that meet specied length

requirements. Section 206.7.10 permits

the use of platform lifts as an alternative to

gangways that are part of accessible routes.

Commenters raised concerns that because

of water level uctuations it may be difcult

to provide accessible routes to all accessible

boating facilities, including boat slips and

boarding piers at boat launch ramps. One of

the specic concerns expressed by several

commenters relates to the limits for running

slope permitted on gangways that are partof an accessible route as gangways may

periodically have a steeper slope than is

permitted for a xed ramp. The exceptions

contained in section 1003.2 of the 2010

Standards modify the requirements of






Chapter 4. For example, where the total

length of a gangway or series of gangways

serving as an accessible route is 80 feet

or more an exception permits the slope on

gangways to exceed the maximum slope in

section 405.2.

Some commenters suggested that

permissible slope variations could be reduced

further by introducing a formula that ties

required gangway length to anticipated

water level uctuations. Such a formula

would incorporate predictions of tidal level

changes such as those issued by theNational Oceanographic and Atmospheric

Administration (NOAA) and the United States

Geologic Survey (USGS). This suggested

approach would be an alternative to the

gangway length exceptions and limits in

section 1003.2.1 of the 2010 Standards.

These commenters noted that contemporary

building materials and techniques make

gangways of longer length and alternative

congurations achievable. These

commenters provided at least one example

of a regional regulatory authority using this

type of formula. While this approach may be

successfully implemented and consistent with

the goals of the ADA, the example provided

was applied in a highly developed area

containing larger facilities. The Department

has considered that many facilities do not

have sufcient resources available to takeadvantage of the latest construction materials

and design innovations. Other commenters

supported compliance exceptions for facilities

that are subject to extreme tidal conditions.

One commenter noted that if a facility is

located in an area with limited space and

extreme tidal variations, a disproportionately

long gangway might intrude into water travel

routes. The Department has considered a

wide range of boating facility characteristics

including size, water surface areas, tidal

uctuations, water conditions, variable

resources, whether the facility is in a highly

developed or remote location, and other

factors. The Department has determined

that the 2010 Standards provide sufcient

exibility for such broad application.

Additionally, the length requirement for

accessible routes in section 1003.2.1provides an easily determinable compliance

standard.

Accessible Boarding Piers. Where

boarding piers are provided at boat launch

ramps, sections 235.3 and 1003.3.2 of the

2010 Standards require that at least ve

percent (5%) of boarding piers, but at least

one, must be accessible.

Accessible Boat Slips. Sections 235.2

and 1003.3.1 of the 2010 Standards require

that a specied number of boat slips in each

recreational boating facility meet specied

accessibility standards. The number of

accessible boat slips required by the 2010

Standards is set out in a chart in section

235.2. One accessible boat slip is required

for facilities containing 25 or fewer total slips.The number of required accessible boat slips

increases with the total number of slips at the

facility. Facilities containing more than one

thousand (1000) boat slips are required to

provide twelve (12) accessible boat slips plus






one for each additional one hundred slips at

the facility.

One commenter asserted the need for

specicity in the requirement for dispersion of

accessible slips. Section 235.2.1 of the 2010

Standards addresses dispersion and requires

that boat slips “shall be dispersed throughout

the various types of boat slips provided.” The

commenter was concerned that if a marina

could not put accessible slips all on one pier,

it would have to reconstruct the entire facility

to accommodate accessible piers, gangways,

docks and walkways. The provision permitsrequired accessible boat slips to be grouped

together. The Department recognizes that

economical and structural feasibility may

produce this result. The 2010 Standards do

not require the dispersion of the physical

location of accessible boat slips. Rather, the

dispersion must be among the various types

of boat slips offered by the facility. Section

235.2.1 of the 2010 Standards species that

if the required number has been met, no

further dispersion is required. For example,

if a facility offers ve different ‘types’ of boat

slips but is only required to provide three

according to the table in Section 235.2, that

facility is not required to provide more than

three accessible boat slips, but the three

must be varied among the ve ‘types’ of boat

slips available at the facility.

236 and 1004 Exercise Machines and

Equipment

Accessible Route to Exercise Machines

and Equipment. Section 206.2.13 of the

2010 Standards requires an accessible route

to serve accessible exercise machines and

equipment.

Commenters raised concerns that the

requirement to provide accessible routes

to serve accessible exercise machines

and equipment will be difcult for some

facilities to provide, especially sometransient lodging facilities that typically

locate exercise machines and equipment

in a single room. The Department believes

that this requirement is a reasonable one in

new construction and alterations because

accessible exercise machines and equipment

can be located so that an accessible route

can serve more than one piece of equipment.

Exercise Machines and Equipment.

Section 236 of the 2010 Standards requires

at least one of each type of exercise machine

to meet clear oor space requirements

of section 1004.1. Types of machines

are generally dened according to the

muscular groups exercised or the kind of

cardiovascular exercise provided.

Several commenters were concerned thatexisting facilities would have to reduce the

number of available exercise equipment

and machines in order to comply with the

2010 Standards. One commenter submitted

prototype drawings showing equipment and






machine layouts with and without the required

clearance specied in the 2010 Standards.

The accessible alternatives all resulted in a

loss of equipment and machines. However,

because these prototype layouts included

certain possibly erroneous assumptions

about the 2010 Standards, the Department

wishes to clarify the requirements.


requires a clear oor space “positioned for

transfer or for use by an individual seated in

a wheelchair” to serve at least one of each

type of exercise machine and equipment.This requirement provides the designer

greater exibility regarding the location of

the clear oor space than was employed

by the commenter who submitted prototype

layouts. The 2010 Standards do not require

changes to exercise machines or equipment

in order to make them more accessible

to persons with disabilities. Even where

machines or equipment do not have seats

and typically are used by individuals in a

standing position, at least one of each type

of machine or equipment must have a clear

oor space. Therefore, it is reasonable to

assume that persons with disabilities wishing

to use this type of machine or equipment can

stand or walk, even if they use wheelchairs

much of the time. As indicated in Advisory

1004.1, “the position of the clear oor space

may vary greatly depending on the use ofthe equipment or machine.” Where exercise

equipment or machines require users to

stand on them, the clear oor space need

not be located parallel to the length of the

machine or equipment in order to provide

a lateral seat-to-platform transfer. It is

permissible to locate the clear oor space

for such machines or equipment in the aisle

behind the device and to overlap the clear

oor space and the accessible route.

Commenters were divided in response to

the requirement for accessible exercise

machines and equipment. Some supported

requirements for accessible machines and

equipment; others urged the Department

not to require accessible machines and

equipment because of the costs involved.

The Department believes that therequirement strikes an appropriate balance

in ensuring that persons with disabilities,

particularly those who use wheelchairs, will

have the opportunity to use the exercise

equipment. Providing access to exercise

machines and equipment recognizes

the need and desires of individuals with

disabilities to have the same opportunity as

other patrons to enjoy the advantages of

exercise and maintaining health.

237 and 1005 Fishing Piers and Platforms

Accessible Route. Sections 206.2.14 and

1005.1 of the 2010 Standards require an

accessible route to each accessible shing

pier and platform. The exceptions described

under Recreational Boating above also

apply to gangways and oating piers. Allcommenters supported the requirements

for accessible routes to shing piers and

platforms.






Accessible Fishing Piers and Platforms.

Sections 237 and 1005 of the 2010

Standards require at least twenty-ve percent

(25%) of railings, guards, or handrails (if

provided) to be at a 34-inch maximum height

(so that a person seated in a wheelchair

can cast a shing line over the railing) and

to be located in a variety of locations on

the shing pier or platform to give people

a variety of locations to sh. An exception

allows a guard required to comply with the

IBC to have a height greater than 34 inches.

If railings, guards, or handrails are provided,

accessible edge protection and clear ooror ground space at accessible railings are

required. Additionally, at least one turning

space complying with section 304.3 of the

2010 Standards is required to be provided on

shing piers and platforms.

Commenters expressed concerns about

the provision for shing piers and platforms

at the exception in section 1005.2.1 of the

2010 Standards that allows a maximum

height of 42 inches for a guard when the

pier or platform is covered by the IBC. Two

commenters stated that allowing a 42-inch

guard or railing height for facilities covered

by another building code would be difcult

to enforce. They also thought that this would

hinder access for persons with disabilities

because the railing height would be too high

for a person seated in a wheelchair to reachover with their shing pole in order to sh.

The Department understands these concerns

but believes that the railing height exception

is necessary in order to avoid confusion

resulting from conicting accessibility

requirements, and therefore has retained this

exception.

238 and 1006 Golf Facilities

Accessible Route. Sections 206.2.15,

1006.2, and 1006.3 of the 2010 Standards

require an accessible route to connect all

accessible elements within the boundary

of the golf course and, in addition, to

connect golf car rental areas, bag drop

areas, teeing grounds, putting greens, and

weather shelters. An accessible route alsois required to connect any practice putting

greens, practice teeing grounds, and teeing

stations at driving ranges that are required

to be accessible. An exception permits the

accessible route requirements to be met,

within the boundaries of the golf course,

by providing a “golf car passage” (the path

typically used by golf cars) if specications for

width and curb cuts are met.

Most commenters expressed the general

viewpoint that nearly all golf courses provide

golf cars and have either well-dened paths

or permit the cars to drive on the course

where paths are not present, and thus meet

the accessible route requirement.

The Department received many comments

requesting clarication of the term “golf carpassage.” Some commenters recommended

additional regulatory language specifying

that an exception from a pedestrian route

requirement should be allowed only when

a golf car passage provides unobstructed






route. Some commenters cautioned that the

2010 Standards would jeopardize the integrity

of golf course designs that utilize natural

terrain elements and elevation changes to set

up shots and create challenging golf holes.

The Department has given careful

consideration to the comments and has

decided to adopt the 2010 Standards

requiring that at least one accessible route

connect accessible elements and spaces

within the boundary of the golf course

including teeing grounds, putting greens,

and weather shelters, with an exceptionprovided that golf car passages shall be

permitted to be used for all or part of required

accessible routes. In response to requests

for clarication of the term “golf car passage,”

the Department points out that golf car

passage is merely a pathway on which a

motorized golf car can operate and includes

identied or paved paths, teeing grounds,

fairways, putting greens, and other areas of

the course. Golf cars cannot traverse steps

and exceedingly steep slopes. A nine-hole

golf course or an executive golf course that

lacks an identied golf car path but provides

golf car passage to teeing grounds, putting

greens, and other elements throughout the

course may utilize the exception for all or

part of the accessible pedestrian route. The

exception in section 206.2.15 of the 2010

Standards does not exempt golf coursesfrom their obligation to provide access to

necessary elements of the golf course;

rather, the exception allows a golf course to

use a golf car passage for part or all of the

accessible pedestrian route to ensure that

access onto the teeing ground, putting

green, or other accessible element of the

course so that an accessible golf car can

have full access to those elements. These

commenters cautioned that full and equal

access would not be provided if a golfer were

required to navigate a steep slope up or

down a hill or a ight of stairs in order to get

to the teeing ground, putting green, or other

accessible element of the course.

Conversely, another commenter requesting

clarication of the term “golf car passage”

argued that golf courses typically do notprovide golf car paths or pedestrian paths

up to actual tee grounds or greens, many

of which are higher or lower than the car

path. This commenter argued that if golf

car passages were required to extend onto

teeing grounds and greens in order to qualify

for an exception, then some golf courses

would have to substantially regrade teeing

grounds and greens at a high cost.

Some commenters argued that older golf

courses, small nine-hole courses, and

executive courses that do not have golf car

paths would be unable to comply with the

accessible route requirements because of the

excessive cost involved. A commenter noted

that, for those older courses that have not yet

created an accessible pedestrian route or golf

car passage, the costs and impacts to do soshould be considered.

A commenter argued that an accessible route

should not be required where natural terrain

makes it infeasible to create an accessible






persons with mobility disabilities can fully and

equally participate in the recreational activity

of playing golf.

Accessible Teeing Grounds, Putting

Greens, and Weather Shelters. Sections


require that golf cars be able to enter and

exit each putting green and weather shelter.

Where two teeing grounds are provided,

the forward teeing ground is required to

be accessible (golf car can enter and exit).

Where three or more teeing grounds are

provided, at least two, including the forwardteeing ground, must be accessible.

A commenter supported requirements for

teeing grounds, particularly requirements

for accessible teeing grounds, noting that

accessible teeing grounds are essential to

the full and equal enjoyment of the golng

experience.

A commenter recommended that existing golf

courses be required to provide access to only

one teeing ground per hole. The majority of

commenters reported that most public and

private golf courses already provide golf car

passage to teeing grounds and greens. The

Department has decided that it is reasonable

to maintain the requirement. The 2010

Standards provide an exception for existing

golf courses with three or more teeinggrounds not to provide golf car passage

to the forward teeing ground where terrain

makes such passage infeasible.


requires that where curbs or other

constructed barriers prevent golf cars from

entering a fairway, openings 60 inches wide

minimum shall be provided at intervals not to

exceed 75 yards.

A commenter disagreed with the requirement

that openings 60 inches wide minimum be

installed at least every 75 yards, arguing

that a maximum spacing of 75 yards may

not allow enough exibility for terrain and

hazard placements. To resolve this problem,

the commenter recommended that thestandards be modied to require that each

golf car passage include one 60-inch wide

opening for an accessible golf car to reach

the tee, and that one opening be provided

where necessary for an accessible golf

car to reach a green. The requirement for

openings where curbs or other constructed

barriers may otherwise prevent golf cars

from entering a fairway allows the distance

between openings to be less than every 75

yards. Therefore, the Department believes

that the language in section 1006.3.2 of the

2010 Standards allows appropriate exibility.

Where a paved path with curbs or other

constructed barrier exists, the Department

believes that it is essential that openings

be provided to enable golf car passages to

access teeing grounds, fairways and putting

greens, and other required elements. Golfcar passage is not restricted to a paved path

with curbs. Golf car passage also includes

fairways, teeing grounds, putting greens, and

other areas on which golf cars operate.






Accessible Practice Putting Greens,

Practice Teeing Grounds, and Teeing

Stations at Driving Ranges. Section


ve percent (5%) but at least one of each

of practice putting greens, practice teeing

grounds, and teeing stations at driving ranges

must permit golf cars to enter and exit.

239 and 1007 Miniature Golf Facilities

Accessible Route to Miniature Golf Course

Holes. Sections 206.2.16, 239.3, and 1007.2

of the 2010 Standards require an accessibleroute to connect accessible miniature golf

course holes and the last accessible hole on

the course directly to the course entrance

or exit. Accessible holes are required to be

consecutive with an exception permitting one

break in the sequence of consecutive holes

provided that the last hole on the miniature

golf course is the last hole in the sequence.

Many commenters supported expanding

the exception from one to multiple breaks

in the sequence of accessible holes. One

commenter noted that permitting accessible

holes with breaks in sequence would enable

customers with disabilities to enjoy the

landscaping, water and theme elements of

the miniature golf course. Another commenter

wrote in favor of allowing multiple breaks in

accessible holes with a connecting accessibleroute.

Other commenters objected to allowing

multiple breaks in the sequence of miniature

golf holes. Commenters opposed to this

change argued that allowing any breaks

in the sequence of accessible holes at a

miniature golf course would disrupt the ow

of play for persons with disabilities and

create a less socially integrated experience.

A commenter noted that multiple breaks in

sequence would not necessarily guarantee

the provision of access to holes that are most

representative of those with landscaping,

water elements, or a fantasy-like experience.

The Department has decided to retain the

exception without change. Comments didnot provide a sufcient basis on which to

conclude that allowing multiple breaks in

the sequence of accessible holes would

necessarily increase integration of accessible

holes with unique features of miniature golf

courses. Some designs of accessible holes

with multiple breaks in the sequence might

provide equivalent facilitation where persons

with disabilities gain access to landscaping,

water or theme elements not otherwise

represented in a consecutive conguration

of accessible holes. A factor that might

contribute to equivalent facilitation would

be an accessible route designed to bring

persons with disabilities to a unique feature,

such as a waterfall, that would otherwise not

be served by an accessible route connecting

consecutive accessible holes.

Specied exceptions are permitted for

accessible route requirements when located

on the playing surfaces near holes.






Accessible Miniature Golf Course Holes.

Sections 239.2 and 1007.3 of the 2010

Standards require at least fty percent (50%)

of golf holes on miniature golf courses to be

accessible, including providing a clear oor or

ground space that is 48 inches minimum by

60 inches minimum with slopes not steeper

than 1:48 at the start of play.

240 and 1008 Play Areas


scoping for play areas and section 1008provides technical requirements for play

areas. Section 240.1 of the 2010 Standards

sets requirements for play areas for children

ages 2 and over and covers separate play

areas within a site for specic age groups.

Section 240.1 also provides four exceptions

to the requirements that apply to family

child care facilities, relocation of existing

play components in existing play areas,

amusement attractions, and alterations to

play components where the ground surface is

not altered.

Ground Surfaces. Section 1008.2.6 of

the 2010 Standards provides technical

requirements for accessible ground surfaces

for play areas on accessible routes,

clear oor or ground spaces, and turning

spaces. These ground surfaces must followspecial rules, incorporated by reference

from nationally recognized standards for

accessibility and safety in play areas,

including those issued by the American

Society for Testing and Materials (ASTM).

A commenter recommended that

the Department closely examine the

requirements for ground surfaces at play

areas. The Department is aware that there

is an ongoing controversy about play area

ground surfaces arising from a concern

that some surfaces that meet the ASTM

requirements at the time of installation will

become inaccessible if they do not receive

constant maintenance. The Access Board

is also aware of this issue and is working to

develop a portable eld test that will provide

more relevant information on installed playsurfaces. The Department would caution

covered entities selecting among the

ground surfacing materials that comply

with the ASTM requirements that they must

anticipate the maintenance costs that will

be associated with some of the products.

Permitting a surface to deteriorate so that it

does not meet the 2010 Standards would be

an independent violation of the Department’s

ADA regulations.

Accessible Route to Play Components.


provides scoping requirements for accessible

routes to ground level and elevated play

components and to soft contained play

structures. Sections 240.2 and 1008 of the

2010 Standards require that accessible

routes be provided for play components. Theaccessible route must connect to at least one

ground level play component of each different

type provided (e.g., for different experiences

such as rocking, swinging, climbing,

spinning, and sliding). Table 240.2.1.2 sets






requirements for the number and types of

ground level play components required to be

on accessible routes. When elevated play

components are provided, an accessible

route must connect at least fty percent

(50%) of the elevated play components.

Section 240.2.1.2, provides an exception

to the requirements for ground level play

components if at least fty percent (50%) of

the elevated play components are connected

by a ramp and at least three of the elevated

play components connected by the ramp are

different types of play components.

The technical requirements at section 1008

include provisions where if three or fewer

entry points are provided to a soft contained

play structure, then at least one entry point

must be on an accessible route. In addition,

where four or more entry points are provided

to a soft contained play structure, then at

least two entry points must be served by an

accessible route.

If elevated play components are provided,

fty percent (50%) of the elevated

components are required to be accessible.

Where 20 or more elevated play components

are provided, at least twenty ve percent

(25%) will have to be connected by a

ramp. The remaining play components are

permitted to be connected by a transfer

system. Where less than 20 elevated playcomponents are provided, a transfer system

is permitted in lieu of a ramp.

A commenter noted that the 2010 Standards

allow for the provision of transfer steps to

elevated play structures based on the number

of elevated play activities, but asserted that

transfer steps have not been documented as

an effective means of access.

The 2010 Standards recognize that play

structures are designed to provide unique

experiences and opportunities for children.

The 2010 Standards provide for play

components that are accessible to children

who cannot transfer from their wheelchair,

but they also provide opportunities for

children who are able to transfer. Children

often interact with their environment in waysthat would be considered inappropriate for

adults. Crawling and climbing, for example,

are integral parts of the play experience for

young children. Permitting the use of transfer

platforms in play structures provides some

exibility for creative playground design.

Accessible Play Components. Accessible

play components are required to be on

accessible routes, including elevated

play components that are required to be

connected by ramps. These play components

must also comply with other accessibility

requirements, including specications for

clear oor space and seat heights (where

provided).

A commenter expressed concerns that the

general requirements of section 240.2.1of the 2010 Standards and the advisory

accompanying section 240.2.1 conict. The

comment asserts that section 240.2.1 of

the 2010 Standards provides that the only

requirement for integration of equipment is






usefulness in providing accessible saunas

and steam rooms. The Department believes

that there is an element of risk in many

activities available to the general public.

One of the major tenets of the ADA is that

individuals with disabilities should have the

same opportunities as other persons to

decide what risks to take. It is not appropriate

for covered entities to prejudge the abilities of

persons with disabilities.

242 and 1009 Swimming Pools, Wading

Pools, and Spas

Accessible Means of Entry to Pools.

Section 242 of the 2010 Standards requires

at least two accessible means of entry for

larger pools (300 or more linear feet) and at

least one accessible entry for smaller pools.

This section requires that at least one entry

will have to be a sloped entry or a pool lift;

the other could be a sloped entry, pool lift, a

transfer wall, or a transfer system (technical

specications for each entry type are included

at section 1009).

Many commenters supported the scoping

and technical requirements for swimming

pools. Other commenters stated that the cost

of requiring facilities to immediately purchase

a pool lift for each indoor and outdoor

swimming pool would be very signicant

especially considering the large number ofswimming pools at lodging facilities. One

commenter requested that the Department

clarify what would be an “alteration” to

a swimming pool that would trigger the

where there are two or more required ground

level play components, while the advisory

appears to suggest that all accessible

components must be integrated.

The commenter misinterprets the

requirement. The ADA mandates that persons

with disabilities be able to participate in

programs or activities in the most integrated

setting appropriate to their needs. Therefore,

all accessible play components must be

integrated into the general playground

setting. Section 240.2.1 of the 2010

Standards species that where there ismore than one accessible ground level play

component, the components must be both

dispersed and integrated.

241 and 612 Saunas and Steam Rooms

Section 241 of the 2010 Standards sets

scoping for saunas and steam rooms and

section 612 sets technical requirements

including providing accessible turning space

and an accessible bench. Doors are not

permitted to swing into the clear oor or

ground space for the accessible bench.


Standards permits a readily removable

bench to obstruct the required wheelchair

turning space and the required clear oor or

ground space. Where they are provided in

clusters, ve percent (5%) but at least onesauna or steam room in each cluster must be

accessible.

Commenters raised concerns that the safety

of individuals with disabilities outweighs the






obligation to comply with the accessible

means of entry in the 2010 Standards.

Alterations are covered by section 202.3

of the 2010 Standards and the denition of

“alteration” is provided at section 106.5. A

physical change to a swimming pool which

affects or could affect the usability of the pool

is considered to be an alteration. Changes

to the mechanical and electrical systems,

such as ltration and chlorination systems,

are not alterations. Exception 2 to section

202.3 permits an altered swimming pool to

comply with applicable requirements to themaximum extent feasible if full compliance is

technically infeasible. “Technically infeasible”

is also dened in section 106.5 of the 2010

Standards.

The Department also received comments

suggesting that it is not appropriate to require

two accessible means of entry to wave pools,

lazy rivers, sand bottom pools, and other

water amusements where there is only one

point of entry. Exception 2 of Section 242.2

of the 2010 Standards exempts pools of this

type from having to provide more than one

accessible means of entry provided that the

one accessible means of entry is a swimming

pool lift compliant with section 1009.2, a

sloped entry compliant with section 1009.3,

or a transfer system compliant with section

1009.5 of the 2010 Standards.

Accessible Means of Entry to Wading

Pools. Sections 242.3 and 1009.3 of the

2010 Standards require that at least one

sloped means of entry is required into the

deepest part of each wading pool.

Accessible Means of Entry to Spas.

Sections 242.4 and 1009.2, 1009.4, and

1009.5 of the 2010 Standards require spas

to meet accessibility requirements, including

an accessible means of entry. Where spas

are provided in clusters, ve percent (5%)

but at least one spa in each cluster must be

accessible. A pool lift, a transfer wall, or a

transfer system will be permitted to provide

the required accessible means of entry.

243 Shooting Facilities with Firing

Positions

Sections 243 and 1010 of the 2010

Standards require an accessible turning

space for each different type of ring

position at a shooting facility if designed and

constructed on a site. Where ring positions

are provided in clusters, ve percent (5%),

but at least one position of each type in each

cluster must be accessible.

Additional Technical Requirements

302.1 Floor or Ground Surfaces

Both section 4.5.1 of the 1991 Standards and

section 302.2 of the 2010 Standards require

that oor or ground surfaces along accessibleroutes and in accessible rooms and spaces

be stable, rm, slip-resistant, and comply

with either section 4.5 in the case of the 1991

Standards or section 302 in the case of the

2010 Standards.







Department apply an ASTM Standard

(with modications) to assess whether a

oor surface is “slip resistant” as required

by section 302.1 of the 2010 Standards.

The Department declines to accept this

recommendation since, currently, there is no

generally accepted test method for the slip-

resistance of all walking surfaces under all

conditions.

304 Turning Space

Section 4.2.3 of the 1991 Standards andSection 304.3 of the 2010 Standards

allow turning space to be either a circular

space or a T-shaped space. Section 304.3

permits turning space to include knee and

toe clearance complying with section 306.

Section 4.2.3 of the 1991 Standards did not

specically permit turning space to include

knee and toe clearance. Commenters urged

the Department to retain the turning space

requirement, but exclude knee and toe

clearance from being permitted as part of this

space. They argued that wheelchairs and

other mobility devices are becoming larger

and that more individuals with disabilities

are using electric three and four-wheeled

scooters which cannot utilize knee clearance.

The Department recognizes that the

technical specications for T-shaped andcircular turning spaces in the 1991 and 2010

Standards, which are based on manual

wheelchair dimensions, may not adequately

meet the needs of individuals using larger

electric scooters. However, there is no

consensus about the appropriate dimension

on which to base revised requirements.

The Access Board is conducting research

to study this issue in order to determine if

new requirements are warranted. For more

information, see the Access Board’s website

at http://www.access-board.gov/research/

current-projects.htm#suny. The Department

plans to wait for the results of this study

and action by the Access Board before

considering any changes to the Department’s

rules. Covered entities may wish to consider

providing more than the minimum amount

of turning space in conned spaces wherea turn will be required. Appendix section

A4.2.3 and Fig. A2 of the 1991 Standards

provide guidance on additional space for

making a smooth turn without bumping into

surrounding objects.

404 Doors, Doorways, and Gates

Automatic Door Break Out Openings. The

1991 Standards do not contain any technical

requirement for automatic door break out

openings. The 2010 Standards at sections

404.1, 404.3, 404.3.1, and 404.3.6 require

automatic doors that are part of a means of

egress and that do not have standby power

to have a 32-inch minimum clear break

out opening when operated in emergency

mode. The minimum clear opening width

for automatic doors is measured with allleaves in the open position. Automatic bi-

parting doors or pairs of swinging doors

that provide a 32-inch minimum clear break

out opening in emergency mode when

both leaves are opened manually meet the






technical requirement. Section 404.3.6 of the

2010 Standards includes an exception that

exempts automatic doors from the technical

requirement for break out openings when

accessible manual swinging doors serve the

same means of egress.

Maneuvering Clearance or Standby Power

for Automatic Doors. Section 4.13.6

of the 1991 Standards does not require

maneuvering clearance at automatic doors.


requires automatic doors that serve as an

accessible means of egress to either providemaneuvering clearance or to have standby

power to operate the door in emergencies.

This provision has limited application and will

affect, among others, in-swinging automatic

doors that serve small spaces.


reconsider provisions that would require

maneuvering clearance or standby power

for automatic doors. They assert that these

requirements would impose unreasonable

nancial and administrative burdens on all

covered entities, particularly smaller entities.

The Department declines to change these

provisions because they are fundamental life-

safety issues. The requirement applies only

to doors that are part of a means of egress

that must be accessible in an emergency. If

an emergency-related power failure preventsthe operation of the automatic door, a person

with a disability could be trapped unless there

is either adequate maneuvering room to

open the door manually or a back-up power

source.

Thresholds at Doorways. The 1991

Standards, at section 4.13.8, require the

height of thresholds at doorways not to

exceed ½ inch and thresholds at exterior

sliding doors not to exceed ¾ inch. Sections

404.1 and 404.2.5 of the 2010 Standards

require the height of thresholds at all

doorways that are part of an accessible route

not to exceed ½ inch. The 1991 Standards

and the 2010 Standards require raised

thresholds that exceed ¼ inch in height

to be beveled on each side with a slope

not steeper than 1:2. The 2010 Standards

include an exception that exempts existingand altered thresholds that do not exceed ¾

inch in height and are beveled on each side

from the requirement.

505 Handrails

The 2010 Standards add a new technical

requirement at section 406.3 for handrails

along walking surfaces.

The 1991 Standards, at sections 4.8.5, 4.9.4,

and 4.26, and the 2010 Standards, at section

505, contain technical requirements for

handrails. The 2010 Standards provide more

exibility than the 1991 Standards as follows:

• Section 4.26.4 of the 1991 Standards re-

quires handrail gripping surfaces to have

edges with a minimum radius of ¹/8 inch.Section 505.8 of the 2010 Standards re-


rounded edges.






• Section 4.9.4 of the 1991 Standards

requires handrails at the bottom of stairs

to continue to slope for a distance of the

width of one tread beyond the bottom riser

nosing and to further extend horizontally

at least 12 inches. Section 505.10 of the

2010 Standards requires handrails at the

bottom of stairs to extend at the slope of

the stair ight for a horizontal distance at

least equal to one tread depth beyond the

last riser nosing. Section 4.1.6(3) of the

1991 Standards has a special technical

provision for alterations to existing facili-

ties that exempts handrails at the top andbottom of ramps and stairs from providing

full extensions where it will be hazardous

due to plan conguration. Section 505.10

of the 2010 Standards has a similar ex-

ception that applies in alterations.

A commenter noted that handrail extensions

are currently required at the top and bottom

of stairs, but the proposed regulations do

not include this requirement, and urged the

Department to retain the current requirement.

Other commenters questioned the need for

the extension at the bottom of stairs.

Sections 505.10.2 and 505.10.3 of the 2010

Standards require handrail extensions at

both the top and bottom of a ight of stairs.

The requirement in the 1991 Standards that

handrails extend horizontally at least12 inches beyond the width of one tread at

the bottom of a stair was changed in the 2004

ADAAG by the Access Board in response to

public comments. Existing horizontal handrail

• Section 4.26.2 of the 1991 Standards re-


a diameter of 1 ¼ inches to 1 ½ inches, or

to provide an equivalent gripping surface.


requires handrail gripping surfaces with a

circular cross section to have an outside

diameter of 1 ¼ inches to 2 inches. Hand-

rail gripping surfaces with a non-circular

cross section must have a perimeter

dimension of 4 inches to 6 ¼ inches, and

a cross section dimension of 2 ¼ inches

maximum.

• Sections 4.8.5 and 4.9.4 of the 1991 Stan-

dards require handrail gripping surfaces to

be continuous, and to be uninterrupted by

newel posts, other construction elements,

or obstructions. Section 505.3 of the

2010 Standards sets technical require-

ments for continuity of gripping surfaces.

Section 505.6 requires handrail gripping

surfaces to be continuous along their

length and not to be obstructed along their

tops or sides. The bottoms of handrail

gripping surfaces must not be obstructed

for more than twenty percent (20%) of

their length. Where provided, horizontal

projections must occur at least 1 ½ inches

below the bottom of the handrail gripping

surface. An exception permits the dis-

tance between the horizontal projections

and the bottom of the gripping surface tobe reduced by 1/8 inch for each ½ inch of

additional handrail perimeter dimension

that exceeds 4 inches.






extensions that comply with 4.9.4(2) of the

1991 Standards should meet or exceed the

requirements of the 2010 Standards.

Commenters noted that the 2010 Standards

will require handrail gripping surfaces

with a circular cross section to have an

outside diameter of 2 inches, and that this

requirement would impose a physical barrier

to individuals with disabilities who need

the handrail for stability and support while

accessing stairs.

The requirement permits an outside diameterof 1 ¼ inches to 2 inches. This range allows

exibility in meeting the needs of individuals

with disabilities and designers and architects.

The Department is not aware of any data

indicating that an outside diameter of

2 inches would pose any adverse impairment

to use by individuals with disabilities.

Handrails Along Walkways. The 1991

Standards do not contain any technical

requirement for handrails provided along

walkways that are not ramps. Section 403.6

of the 2010 Standards species that where

handrails are provided along walkways

that are not ramps, they shall comply with

certain technical requirements. The change is

expected to have minimal impact.



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